W-P (Children)

Judgment

Lord Justice Wilson:

With permission granted by this court earlier today, Coventry City Council (“the local authority”) appeal against certain findings of fact made in care proceedings by His Honour Judge Hooper QC sitting in the Coventry County Court on 28 November 2008. The proceedings relate to two young male infants born to the mother, albeit by different fathers, namely J, who was born on 2 January 2006 and so is now aged three, and K, who was born on 18 February 2008 and so had his first birthday yesterday. The first respondent to the proceedings was the mother. The second respondent was K’s father. The third respondent was J’s father. The fourth and fifth respondents were the boys, by their Children’s Guardian. In that J’s father plays only a minor role in the relevant history, it will be convenient to refer to K’s father as “the father”.

The mother and the father presented K to hospital at 1.31am on 6 April 2008, thus when he was aged seven weeks. There it was discovered that he had sustained, first, a transverse fracture of the lower end of his right femur (“the fracture”); second, two circular bruises, each 1cm in diameter, on the left side of his lower chest (“the bruising”); and, third, a scratch, 2.5cm long, above and behind his right ear (“the scratch”). A fourth area of injury, namely bruising to his right lower leg, can be ignored. By the time of the hearing before the judge it had become common ground, in the light of the expert evidence, that at any rate the fracture -- and very possibly also the bruising and the scratch --had been sustained within a few hours of his presentation to hospital. Following K’s discharge from hospital, he and J were placed in the care of others, where they remain; and the expert reports were obtained to which I will shortly refer.

The hearing which led to the judgment on 28 November 2008 had been arranged as an inquiry into whether the threshold to the making of care orders in relation to the boys had been crossed and, in particular, to whether K’s three injuries had been sustained non-accidentally. The contention of the local authority was that the evidence should lead the judge to find that the injuries had all been inflicted upon K non-accidentally, by which they meant intentionally; that it was the father alone who had perpetrated them; but that, were the judge unable to conclude that he was their sole perpetrator, he should make a Lancashire finding that they had been perpetrated either by th