NH v A County Council & Ors

This is the judgment of the court

Lord Justice Wall:

Introduction

We heard this appeal on 13 May 2009. At the conclusion of the argument, we announced our decision, but reserved our reasons. These we now give. Permission to appeal had initially been refused on paper by Wall LJ on 24 February 2009, but granted at an oral hearing on 1 April 2009 by Rix and Wilson LJJ. The essence of our decision was as follows, namely that–

The appeal be allowed;

the finding by His Honour Judge Meston QC that the appellant father was the sole perpetrator of the injuries to each of the children be set aside;

there be substituted a finding that neither parent can be excluded as possible perpetrators of the injuries to either child;

the “neutral” finding by the judge that it could not be said who was responsible for the injury to S’s frenulum be set aside and replaced with a finding that the respondent mother alone was the perpetrator of that injury;

the matter be remitted to the Bournemouth County Court for His Honour Judge Meston QC to continue with the hearing in the light of this court’s judgment;

reporting restrictions be imposed;

costs.

The appeal

The father of two children (a boy, R who was born on 16 July 2005, and a girl, S who was born on 14 February 2008) appeals against findings of fact made on what has become commonly known as the first limb of a split hearing of care proceedings under Part IV of the Children Act 1989 (the 1989 Act) being conducted in the Bournemouth County Court by His Honour Judge Meston QC, resulting in a reserved judgment delivered by the judge on 3 December 2008. As will have been seen, we imposed reporting restrictions, and this judgment is being written anonymously.

The essential findings made by the judge, although not recorded in the order of the court issued on the following day, were that the father was the perpetrator of injuries suffered by both children (the injuries to S being much more severe than the injuries to R) and that the mother could be excluded as a perpetrator of the injuries to either child. It was not suggested that any person other than the mother and / or the father could have perpetrated the injuries. Moreover, nobody suggested that any of the injuries to either child was other than non-accidental; and nobody sought to persuade us that the threshold criteria under section 31 of the 1989 were not satisfied in relation to both children.

For the father, Mr. Robin Tolson QC argued either that we should rever