N (A Child)

Judgment

Mr Justice Holman:

In her judgment handed down on 25 November 2008 the judge, HHJ Hindley QC, described this case as “deeply troubling”. In my view that is an apt description. A child was undoubtedly injured. It is highly unlikely that he was injured by more than one person. A pool of three “potential perpetrators” was identified. Two of those people must be innocent or free from responsibility, yet a cloud of suspicion hangs over them. Such an outcome is plainly a deeply troubling one.

The essential factual background to this appeal is as follows. YW, whom I will call the mother, came to England from Jamaica as a visitor in the year 2000. She has become an over-stayer, a fact which the judge clearly found relevant to aspects of her care for her son; for and being an over-stayer she has not been able to access forms of state housing and benefits, which has imposed particular strains upon her capacity to look after her son. Her son is T, who was born on 17 July 2002. It follows that T is now aged about six and a half. In March 2007, which is the date at the heart of this case, he was aged about four and a half. T’s father has played no role in his life nor in these proceedings.

During 2006 the mother began to live with T at an address at Audleigh House in Bellbarn Road in Birmingham. The tenant of that property was a man called ER. There was some loose connection between the mother and ER through a third party. There is no suggestion that there has ever been any kind of relationship between the mother and ER other than that ER permitted the mother and T to reside at the property of which he was the tenant. On his later evidence, ER himself principally resided elsewhere with a girlfriend.

The mother worked long hours as a cleaner. She accordingly had to make arrangements for someone else to care for T whilst she was at work. She encountered Mr HH and his wife, Mrs HH, through the school attended both by T and by children of Mr and Mrs H. Mr and Mrs H themselves have three children, who in spring 2007 were aged 11, 10 and one and a half. A pattern was established whereby the mother would take T at about 6.00 am each morning to the home of Mr and Mrs H T would then spend the morning there and one or other of Mr or Mrs H would take him to school at around lunchtime. As I understand it, he was collected from school and returned to the home of his mother. This pattern was followed on Monday 12 March 2007. At about 6.00 that morning the mother arrive