No B1/2000/2049
Neutral Citation Number: [2000] EWCA Civ 503
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MRS JUSTICE HOGG
Royal Courts of Justice
Strand
London WC2

Tuesday 20th June 2000

B e f o r e:

THE PRESIDENT
(The Rt Hon Dame Elizabeth Butler-Sloss)

LORD JUSTICE THORPE

MR JUSTICE BURTON
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G (a child)
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 (Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
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Official Shorthand Writers to the Court)
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MR J COHEN QC and MISS C WOOD (Instructed by Hillman Smart Spicer of Eastbourne) appeared on behalf of the Appellant

MISS MARY LAZARUS (Instructed by Legal Department, East Sussex Council) appeared on behalf of the First Respondent

MR ROGER HAYWOOD-SMITH QC and MISS CLAIRE JAKENS (Instructed by Stephen Rimmer & Co of Eastbourne) appeared on behalf of the Second Respondent

MR STEPHEN COBB (Instructed by Lawson Lews of Eastbourne) appeared on behalf of the Third Respondent

MISS J BROWN (Instructed by Messrs Buss Merton of Tunbridge Wells) appeared on behalf of the Fourth Respondent
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J U D G M E N T
1.	THE PRESIDENT:  This is an extremely sad case. I start by giving a direction as to identification that there should be no identification of the mother, father, father of the child with whom we are concerned or any other member of the family that might lead to the identification of the child who is the subject of these proceedings. We shall be grateful to the Press for their usual care to keep anonymity of names.
2.	This is a case where a child aged five-and-a-half months died while in the care of the parents. The cause of death was unknown, but in due course when proper investigations were made it was discovered that he had suffered very serious injuries which could not be identified as leading directly to his death but were caused over a period of four to six weeks. I will identify some of those injuries in a moment. The sad fact is that this child was in the care of the parents of the child;  there is no other possible perpetrator. It is either the mother or father or possibly both of them as to either all the injuries or some of the injuries.
3.	The background to this case is that the father of the dead child, but not the father of J, is 27 years but I will, for convenience, call him the father. The mother of both children is now 21 years. J was born on 13th September 1996 to a different father, who is represented through counsel here today but who has not taken specific part in these proceedings. The relationship between the father of J and the mother ended some time in 1997. In July 1998 the mother started a relationship with the father of the deceased child. The mother had been only 17 when J was born. She was only 19, I think, when the second child was born. R was born on 27th December 1998. The parents’ relationship was a new one. The pregnancy was unplanned. Both parents were taken aback by the fact that she did become pregnant. The child was born at twenty-seven-and-a-half weeks. He was in an incubator for about a month and stayed in hospital from birth in December until 4th March 1999. The father has two other children and a step child, to whom he is clearly devoted, and those children spent a considerable amount of time at weekends with the family, making a family of five. Between 21st and 25th March, that is to say some three weeks after R came out of hospital, he was back in hospital for four days with a bruise, quite a serious bruise, and some other bruising to his face and a history of vomiting. He was returned home where he stayed until, on 13th June 1999, he died at the age of just under six months.
4.	The post mortem indicated that the cause of death was infection. There was no doubt that he did have an infection. It was not until considerably later that the full details of the non-accidental abuse became clear to the bevy of doctors, many from Great Ormond Street, who became involved in this sad case. As a result of the finding that the child had had non-accidental injury before death, J was placed in care and he is currently with short-term foster parents. Dependent to some extent on the outcome of this case, his future will be determined next week in the High Court.
5.	There was a split trial. The first part of the hearing was had he been abused, to which the answer was obviously yes, and, secondly, who did it was the part of the preliminary issue tried by Mrs Justice Hogg who gave judgment on 19th April 2000. She gave a careful judgment in which she recognised the value of clarity as to which of the parents was the perpetrator, but came to the conclusion that she was unable to identify between the two parents which of them it was, if not both, and therefore at the end of her hearing there was a finding there had been non-accidental injury but an inconclusive decision as to which parent. They both remain as possible perpetrators.
6.	This matter came at short notice before the Court of Appeal. Two  members of this court sat and heard the application for permission to appeal. Because of the seriousness of the allegations and the probable continuing impact upon both parents, we thought it was appropriate that we should at least look at this case again to see whether or not the criticisms voiced at that time by Mr Gordon Murdoch QC on behalf of the mother had any  substance whatever. We are very grateful today that at extremely short notice - this appeal having been put in at under a week’s notice - counsel representing not only the mother, who has been counsel throughout, counsel for the father, counsel for the local authority and for the guardian ad litem have all not only  attended today but have provided extremely useful skeleton arguments that we have all found to be most valuable.
7.	Regarding the injuries to the child, it is difficult to be precisely sure about dates and impossible to tell, according to the judge, who might have caused them. The injuries that were found after the post mortem were fractures, the oldest of which were some four to six weeks old, that is to say, probably occurring between 2nd and 16th May 2000 or possibly a day or two later. There were fractures to the left seventh and eighth ribs which were healing, the mid axillary line and the posterior end of the left fifth and seventh ribs. There was also a healing transverse fracture across the upper shaft of the left tibia,seven to fourteen days old, likely to have occurred, therefore, between 30th May and 6th June;  fractures at the anterior end of the right sixth and seventh ribs, less than seven days old, possibly on the day of death or the day before. Those rib fractures demonstrated extreme squeezing of the chest. There were crush fractures to the third or fourth vertebral bodies in  the thoraco-lumbar region which were undated. There were extensive retinal haemorrhages in both eyes, less than 24 hours before. That was clearly a shaking injury but was not the cause of death and not, looking at shaking injuries, as severe as many of them are. There were also some haemorrhages to the brain identified as being within the previous 36 hours.
8.	So we have a series of injuries to this child over a six-week period before the death of the child. One bears in mind that the child was only in the care of this family for about three months. 
9.	On 13th June, the uncontested evidence was, it being I think a Sunday, that the parents’ habits were to have the father’s sons and stepson to stay, that the mother was left in bed during the morning until about 9.30;  the father got up at 6 to 7 in the morning and fed the baby. It was his usual practice to take the baby downstairs and deal with the other four children, J and the father’s other three children. The mother, having got up at around 9.30 in the morning, then about 10 am would take J and one or other of the boys with her to do the family shop and she would return at about 12 noon. On this occasion, according to the mother and father, the father got up between 6 and 7. He fed the baby in a manner which I will deal with in a moment, which the judge described as bizarre. He went downstairs, leaving the baby - contrary to his custom - in the cot. He got on dealing with the other children and the family duties. The mother stayed in bed until 9.30. She got up at 9.30 and took J and possibly another child off shopping at 10 am. Both parents said that the baby, R, was bright and cheerful, unusually cheerful, and well when the mother left at 10 o’clock. She returned at about 12. She sat beside the baby who was propped up on a sofa or chair. She may have touched his hand but did nothing to him until, about half-an-hour later, she discovered something wrong with him. He was taken to hospital and found to be dead. The medical evidence is that on that morning he was dead by 11.30 am, that the shaking injury was likely to have occurred no later than 9.30 because the retinal haemorrhages took up to two hours to show themselves and  they were already apparent when the child was examined after  death.
10.	The father said that he gave the child milk, and there was some milk in the child’s stomach. So it looks at though, if the child was able to drink milk at between 6 and 7 of the morning, the time with which we are likely to be concerned and accepted by counsel and certainly by the judge appears to be between 6 and 7 in the morning and 9.30 when the shaking injury probably occurred.
11.	It had rather been, in my understanding, prior to the argument of Mr Cohen QC for the mother, that all the other injuries were likely to have occurred either at the time of the shaking or prior to the shaking but he did suggest to us that it was possible that the squeezing fractures of the chest might have occurred subsequently. There is of course no evidence either way. On the evidence before her the judge found that she was unable to accept the veracity of either parent. She found their evidence to be inconsistent and unreliable. She looked anxiously at the background to the parents to get any clue as to which of them might be the more likely to have been the perpetrator. She set out the fact that the father had a short fuse, there had been incidents of violence. She set out some problems the mother had, and came to the conclusion at page 32 of her judgment:
“Whatever suspicions I may harbour, they are not enough on which to base a finding against the parent. I have to ensure that there is strong and cogent evidence to do so. In my view, without more circumstantial evidence, I am not in a position to say when the various injuries were sustained with precision, or in what circumstances, and I am not in a position, therefore, to say with clarity which of the two parents inflicted the injuries, and I do not seek to do so.”
12.	Mr Cohen, on behalf of the mother, raises two main issues. In raising those issues, the conclusion to which he wishes the court to come is that the judge was not justified in being unable to come to a decision that she could not identify the perpetrator,  that she ought, on the evidence before her, to have found that the father was clearly the perpetrator and the mother should be excluded.
13.	In order to achieve that position before this court, he raises two main grounds of appeal. One is the standard of proof. He accepts, I think, despite some criticism, that the judge correctly identified the standard of proof within the wording of the decision of the House of Lords in Re H (minors) [1996] AC 563 and in particular the speech of Lord Nicholls of Birkenhead which has become the basis of the approach by judges at all levels in dealing with family cases. Those principles are applied equally in civil and in family law cases. In Re H a stepfather was accused by his 15 year old stepdaughter of having raped her over a period of years from when she was 7 or 8. He was charged with rape and was acquitted, and the judge in the care court was unable to say with sufficient certainty, on the standard of proof which he applied, that this rape had occurred. Lord Nicholls said at page 586 D:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’”
14.	At page 587 Mr Cohen also invited our attention to a passage at just above D:
“If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be  higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be?  The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change.”
15.	In the present case there is no problem over identifying that  physical abuse or non-accidental injury has occurred. That has been clearly established by the medical evidence. The second question - the difficult one - is who was the perpetrator?
16.	I have already read the passage from the judgment of Mrs Justice Hogg when she stated, “I have to ensure that there is strong and cogent evidence” against the bases of finding against a parent.
17.	Mr Cohen criticises her for that and says that she is requiring too high a test. He has argued to us that one needs to take account, in Lord Nicholls’ speech, of the fact the more serious the allegation the less likely the event has occurred. The word “event” is used in the next paragraph which I have already read. He submitted that cogent evidence is required for finding that the event has occurred. Once that hurdle is surmounted, the question of which was the perpetrator was to be decided on the straightforward balance of probabilities. This was expressed rather attractively by Burton J as, provided you get over the hump, it is downhill all the way. That is not intended to be flippant comment but intended to give a wholly colloquial  example of the argument put forward by Mr Cohen. This is a novel argument and I do not myself accept it. I do not believe that Lord Nicholls was using the word “event” as meaning it is only an event that has to be proved and the question as to who was the perpetrator is a somewhat lower standard of proof in the sense that one does not have to have cogent or strong evidence to prove it. I cannot see that there is a different test for whether abuse has occurred or whether, if abuse has occurred, which is the abuser.
18.	In each case the decision has to be made by the court on the balance of probabilities. There will be cases where once the hurdle of abuse is surmounted the abuser is easy to identify. That is because there is evidence which will identify it. It does not affect the requirement that to find a parent guilty of non-accidental injury - a very serious allegation - requires there to be sufficient evidence on which a court can rely. That evidence cannot be trivial or unreliable. It must be adequate to meet the allegation that is made.
19.	In the present case the judge had to do justice between three parties, quite apart from the obligation to society to do justice generally. The justice which she had to do was to the child, the subject of these proceedings, not to the child who has died, to the father and to the mother. As I have said, the possibilities are three:  mother, father or both of them. Both of them may have caused some of the injuries or both of them all of the injuries or either of them.
20.	It is of some interest that the case before Ungoed-Thomas J, referred to with approval by Lord Nicholls in Re Dellow Wills Trust [1964] 1 WLR, was a case where the husband and wife had died at the same time and there was an issue as to whether or not the wife, who was younger, could succeed to the estates of the husband. It was found that she had feloniously killed the husband to the standard of proof required in civil matters. The observations made and referred to by Lord Nicholls are to be found at page 455:
“The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”
21.	The allegation with which we are concerned is that father did it. The separate allegation with which we are concerned is that mother did it. We have to have sufficient evidence to meet the seriousness of those allegations.
22.	Interestingly, Hornal v Neuberger Products Ltd [1957] 1 QB is again approved by Lord Nicholls. In that case the issue was whether or not a statement had been made upon which a party relied and which was nevertheless alleged to be a false misrepresentation. In each case the fact which is in issue is a different one. The allegation is a different one but the evidence required to meet the balance of probabilities is, in my judgment, exactly the same. There must be sufficiently cogent evidence to meet the allegations made in the particular case.
23.	In the present case, in my view, the judge gave an impeccable self-direction. She recognised the convenience of coming to a  clear conclusion, but, in conscientiously weighing up the evidence, she came to a conclusion which she appreciated was unpalatable, that the evidence was not sufficient on the balance of probabilities to exclude the mother and positively, on the balance of probabilities, to identify the father.
24.	In my judgment, there is no merit in the question of law and the judge did not err in her self direction or in her application of the standard of proof to the case with which she was dealing. 
25.	The second issue raised by Mr Cohen is - was the conclusion of the judge not to identify the father as the perpetrator justified on the evidence. This was a matter - when I read the judgment of the judge first, without reading as carefully as I should have done before the application for permission to appeal - that did cause me some concern. But Mr Cohen has set himself a difficult task, in that he is trying to persuade an appellate court that it should set aside the findings and conclusions of the judge when she saw and heard the witnesses and evaluated the reliability and credibility or lack of credibility of both parents.
26.	Mr Cohen has raised with us a number of points in which the case against the father is, in his view, a formidable one and raises questions which the judge ought to have answered. The evidence of the way in which the father fed the baby on this fateful 13th June was described by the judge as bizarre. He did not pick up the baby to feed it;  he did not wind the baby;  he did not change the baby;  he did not take the baby downstairs;  he left the baby in the cot and ignored the baby thereafter, all unusual practices. He had the care of the child between 10 o’clock in the morning until 12 o’clock, and between 10 o’clock and 12 the child died.
27.	He gave a description that the judge thought extraordinary of what he was doing and saying that morning. The judge found it very difficult to believe his evidence. He, like the mother, gave an extraordinary description, in my view, and in the judge’s view, as to how the baby was presenting at 10 am. He gave evidence that was, in the view of Mr Cohen, exculpating the mother, that she was in bed until 9.30. There was no evidence that she got out of bed and no evidence that she went anywhere near the baby. He says that that evidence excludes the mother from being one of those who might have injured the child. After she left at 10 o’clock she was nowhere near the child and the child died before she returned.
28.	Mr Cohen pointed to the evidence given by the mother, the paediatrician and social worker and inconsistent evidence given to the court in a statement to the court. Mr Cohen relied on a number of findings made by the judge which were extremely critical of the father. She said at page 28:
“The father’s inconsistencies to the police, to Dr Bamford, and his own statements and to me are even more glaring. Throughout, however, he was seeking to distance himself from R, minimising his involvement, strikingly so with his description of how he failed to touch R ..... “
29.	and she set out the various matters about the feeding in the early morning. She also found that there were obvious inconsistencies in the various accounts:
“In seeking to explain the inconsistencies he was on very weak ground and gave explanation which, if not lies, was so untenable as to be unbelievable. On other occasions he minimised or sought to evade his wrongdoing, and I am driven to conclude that at times, particularly when he is at fault or being capable of being criticised, he was deliberately unreliable, and I must regard his evidence in crucial parts as questionable.”
30.	However, the judge did then go on and look at the evidence of the mother. She did not set out as many inconsistencies and she was  not as critical of her as she was of the father. But she did  say at page 31:
“ ..... bearing in mind those inconsistencies and minimisations,”
31.	which were already set out,
“I have to look with caution at her evidence, particularly the crucial periods, and I have already commented on my concerns about the veracity of both parents’ evidence when it is incompatible with the medical evidence.”
32.	Also she pointed out at page 32:
“Given that both parents had ample opportunities to injure the child ..... “
33.	on 13th June and previous occasions, the judge, in my judgment, had evidence on which she could come to the conclusion that both parents were clearly potential possible abusers.
34.	Put as Mr Cohen has put it to us, the case against the father would appear to be a quite formidable one. It would appear on the argument by Mr Cohen to be stronger than the case against the mother.
35.	However, from the very useful skeleton arguments that we have received from the father’s side, the local authority and the guardian ad litem, that has somewhat redressed the balance and the mother did have opportunity before 10 am to injure the child. She had the opportunity to injure the child on other ocassions. Her evidence was unreliable. She did not see anything wrong with the child at 10 am. It is very odd, indeed, that she did not realise, according to her, that the child was dead when she returned at 12. Mr Cohen asks us to say that the judge should have asked the question if the father was not the perpetrator why would he give such inconsistent accounts and why would he behave in such a bizarre way. The judge could have indulged in a half a page or a page and a half of speculation as to why people tell lies when they are facing an allegation. They may not necessarily be responsible for the matter alleged. There are all  sort of reasons why they may do that. I do not believe that the judge’s failure to give that explanation is, in any way, a  justifiable criticism of her. She took into account that she did not accept the evidence of either of them on crucial matters.
36.	So it is impossible, in my judgment, for this court to say that the judge was plainly wrong not to exclude the mother and plainly wrong not to find, on the balance of probabilities, that the father was the perpetrator. We are not in the position of the judge. The weight of the evidence is peculiarly a matter for the judge unless, on the face of it, the judge was plainly wrong. 
37.	Because of the importance of the matter, we have reviewed the evidence. We have reviewed the arguments. We are grateful to Mr Cohen, who has put every single point that could possibly be put for his client.
38.	At the end of the day, this is a conscientious judgment where the judge was unable to decide which of the two was the perpetrator. It was in many ways, perhaps, a brave decision to which she came. It might have been easier to name one parent rather than the other. But for this court to interfere in the circumstances of this case is not possible.
39.	I would dismiss this appeal.
40.	LORD JUSTICE THORPE:  I agree.
41.	MR JUSTICE BURTON:  I also agree.
Order:  Appeal dismissed