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Lord Justice Wall:
As these proceedings are still ongoing I would propose that we impose reporting restrictions on them, and I hope that neither the mother nor the father of the child concerned will be offended if, in the interests of anonymity, I refer to them as the mother and the father respectively. Certainly no lack of consideration or discourtesy is intended by my doing so. This is the father’s appeal against findings of fact made by HHJ Waddicor, sitting in the Brighton County Court as long ago as 6 February 2009. She summarised the issues in the case succinctly in the opening paragraphs of her judgment. The child in question is called JW and he was born at 3.34 on the afternoon of Friday 10 October 2008 at the local hospital. He was discharged from hospital in the late afternoon on the following day, Saturday 11 October. He spent the next two nights at home with his parents. In the afternoon of Monday 13 October JW was taken back to the hospital by his parents who were concerned about the condition of his right thigh. He was examined by a paediatrician; x-rays were taken. X-rays revealed a fracture of the right femur. All the expert evidence diagnosed a fracture as a classic metaphyseal lesion. Those were the essential facts. The judge summarised the issues she had to resolve as follows:
“First, when did J sustain the injury to his thigh? Second, was the injury accidental or non-accidental? There are other related questions, but those are the two primary questions that I have to determine.”
Before I go through the facts I want to say a word or two, particularly to the father. When I saw the case on paper on 10 April of this year I refused permission to appeal in fairly direct terms. I said:
“The ‘approved judgment’ of the judge seems to me immaculate. The findings she made were clearly open to her and depend in no small measure on her assessment of the credibility of the various witnesses. In my view, it is a classic finding of fact exercise: thus the findings the judge made were open to her and she has explained them carefully. It is not suggested that she made an error of law.
Whilst the application for permission to appeal is skilfully presented, it is not for this court to second-guess the judge. I do not, accordingly, think that an appeal will stand any reasonable prospect of success.”
I would quite understand, from the father’s perspective, that he would think that someone like myself, coming to the appeal now when colleagues have given