S (Children)
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE LAWS
- LORD JUSTICE PATTEN
- LADY JUSTICE MACUR DBE
Areas of Law
- Evidence Law
- Civil Procedure
- Family Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The father's applications for permission to appeal and to admit new evidence were dismissed. The appeal contested the non-accidental injury findings by HHJ Tyzack QC. The court ruled that the local authority had met the burden of proof to show the injuries were non-accidental. The judges found no merit in the father's arguments regarding burden of proof, inherent probability, previous case law, or weight of evidence. The judgment underscores principles related to the burden of proof and assessment of inherent probabilities in evidence.
Judgment
Lady Justice Macur DBE :
The father’s application for permission to appeal with appeal to follow if granted was listed before the full court at the direction of the single judge. An application to admit fresh evidence was received on 15 October 2014. Both applications were dismissed with reasons to follow.
The application to admit “fresh” evidence related to a letter dated 25 September 2014 sent to a GP from Dr Peter Turnpenny, Consultant Clinical Geneticist and Honorary Associate Professor. The substance of the letter concerns K and is reliant on the reported concerns of the parents. Reference to R is in passing.
The content of the letter in its present form has no impact whatsoever upon any of the issues raised in the proposed grounds of appeal. This is sufficient reason to dismiss the application without the necessity to make further reference to CPR 52.11 (2) (b) or the ‘Ladd v Marshall’ principles.
The proposed appeal seeks to set aside the findings of HHJ Tyzack QC, sitting as a deputy high court judge, on 29 November 2013 to the effect that R born on the 23 May 2012 had sustained non accidental injuries including bruising to his upper and lower limbs and fractures to his skull, ribs and left radius.
The mother supports the application. She and the father have common cause.
The father was represented by Mr Feehan QC and Mr Butterfield at this court and below. The local authority was represented by Miss Bazley QC and Ms Ingham, the latter of whom appeared at first instance. Counsel for the Children’s Guardian, Miss Cook QC was excused attendance in this court with a view to saving the public purse, but prepared a skeleton argument which has provided considerable assistance to us.
There are four grounds of appeal. It is claimed that the judge (i) failed to apply the correct burden of proof; (ii) failed to adequately reflect the inherent probability of these parents causing non accidental injury to their youngest son; (iii) failed to have adequate regard to the “persuasive authority of Re ED [2013] EWHC 968 (Fam) ; (iv) failed to reach conclusions which accorded with the weight of the evidence.
As to (i): Mr Feehan argues that despite his articulated and unimpeachable self direction as to the burden of proof, the judge adopted a different rationale which he describes as a “linear” process which thereby reverses the burden of proof, citing Rhesa Shipping Co SA v Edmond and Another: The Popi M [1985] 1 WLR 948 .
His submissions reve