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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O & N (children) [2002] EWCA Civ 1271 (26 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1271.html Cite as: [2002] 2 FLR 1181, [2002] EWCA Civ 1271, [2002] 3 FCR 418

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(Her Hon. Judge Downey)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th July 2002

Lord Justice Ward :

What is this appeal about?

1. That is a question I put to Mr Ryder Q.C. who appears for the appellant. The answer is still far from clear, but let me elaborate. The order under appeal is the order of Her Hon. the late Judge Downey made on 10^th April 2002. That was in form no more than an order giving directions for the final disposal of an application by the local authority for care orders in respect of two children of the appellant mother and her partner, the second respondent, namely L born on 8^th November 2000 and C born on 22^nd October 2001. That order provided, so far as could possibly be material for the purposes of this appeal:-

"1. A transcript of the judgment given today be prepared at public expense and served on all parties.

2. …

3. The mother LN do file a statement in response to today's judgment by 1 May 2002.

4. The guardian do arrange for Dr. Alvin to file an addendum to his report of 7^th November 2001 dealing with today's judgment and LN's reaction to it by 8 May 2002.

5. The local authority do file a statement and care plan by 22.5.2001.

6. LN and LOS do file their statements in response to the care plan and local authority statement by 5 June 2002.

7. The guardian do file her report by 19.6.2002."

One would not know from the form of order that the judge had in fact embarked on a hearing to find facts relating to serious injury suffered by L. The notice of appeal asks for the order (all of it) to be set aside and for the application, presumably for the care order, to be dismissed.

The sad factual background.

2. At about 1 a.m. on 12^th May last year L, then only six months old, was taken to Alder Hey Hospital by the appellant who was concerned about swelling to L's head. Examination of L revealed a catalogue of injuries as follows:-

i) A complex comminuted fracture of the left parietal bone and an acute subdural haematoma frontally which was caused by very severe impact to the head, either a punch or a falling to the ground with considerable force between 1-7 days before admission to hospital, that is to say between 5^th and 11^th May.

ii) An undisplaced fracture of the mid-shaft of the left clavicle which was caused by dropping the child onto her shoulder or, alternatively, direct pressure by a thumb at the site of the fracture some 7-10 days before 14^th May when the x-rays revealed the injury, so dating it between 4^th and 7^th May.

iii) Fractures to the 7^th and 8^th left ribs and the 5^th and 6^th right ribs which were caused by a squeezing injury to the chest, compression of the rib cage with force far greater than that generated in normal handling which occurred 2-3 weeks before 14^th May and so were caused between 23^rd April and 6^th May.

iv) A fracture to the 10^th right rib again caused by forceful squeezing to the chest, again due to force far greater than that occurring in normal handling which happened within a week of attendance at the hospital, that is to say between 6^th and 12^th May.

v) A bucket-handled fracture of the lower shaft of the left tibia which was caused by twisting shearing force being applied to the ankle or by the child being roughly pulled and twisted by the limb sometime between 9^th and 11^th May.

The medical evidence was agreed and the doctors were satisfied that there were at least two separate occasions of non-accidental injury to this unfortunate child.

3. Both the mother and the second respondent were arrested and interviewed at length. The second respondent after a while retracted his denials and admitted that on the Wednesday preceding the child's admission to hospital, namely on 9^th May, he had lost his temper and punched L once on the head. He accepted that in so doing he had caused the fractured skull and haematoma. He subsequently pleaded guilty to the offence of causing grievous bodily harm with intent and was sentenced to a term of 3½ years imprisonment. He also admitted in the interviews that on 25^th April he punched the mother whilst she was holding the baby and he accepted that the other injuries might have been occasioned in recoil from that blow. He accordingly pleaded guilty to the lesser offence under section 20 of the Offences against the Person Act of inflicting grievous bodily harm for which he was sentenced to 2 years concurrently with the more serious section 18 offence.
4. The mother adamantly denied causing any injury to her daughter and, in view of the pleas tendered by the second respondent, the charge against her of neglect and ill-treatment to her child did not proceed but was ordered to lie on the file.
5. The local authority commenced proceedings for a care order in respect of L on 14^th May. When C was born, the local authority immediately applied for a care order and the two applications were consolidated. Interim care orders have been made. L has been placed with foster carers since the first interim order was made with respect to her. The mother and the second respondent separated after L's admission to hospital and their arrest and their relationship seems to be at an end. The mother returned home to live with her parents and after C was born mother and child were discharged from hospital to a mother and baby unit where they continue to live.

Directions for the fact-finding hearing.

6. On 6^th October 2001 Judge Downey made an order by consent after hearing counsel and solicitors that:-

"The final hearing presently listed for 14^th and 15^th March 2001 be listed for a further day 13^th March 2002 … before [her]."

There was to be a further directions hearing before the judge on 30^th January "to further consider any directions required and the listing of the final hearing". That further directions appointment was adjourned to 28^th February when His Hon. Judge Brown made an order by consent, again after hearing counsel and solicitors, that the hearing date listed, acccording to the order, "for 13^th-18^th March" be reduced to 2 days reserved to Her Hon. Judge Downey. The order then directed:-

"By 4 p.m. on 4^th March 2002 the local authority shall file with the court and serve on all parties:-

a) A statement of case in relation to the findings sought at the finding of fact hearing listed for 14^th March 2002.

b) Draft threshold conditions in respect of the applications for section 31 orders for each child."

This is the first mention in the orders of a "finding of fact hearing".

7. The local authority sought to have the following findings made by the court:-

"1. That the child L sustained the following injuries:-

(a) a complex comminuted fracture of the left parietal bone;

(b) an undisplaced fracture of the midshaft of the left clavicle;

(c) fractures to the left 7^th and 8^th ribs;

(d) fractures to the right 5^th, 6^th and 10^th ribs;

(e) a bucket-handled fracture of the lower shaft of the left tibia.

2. That those injuries were caused on different occasions.

3. That the fracture to the left parietal bone was caused:-

(a) by [the second respondent, the father];

(b) on 9^th May;

(c) through the deliberate infliction of a single blow;

(d) caused by a loss of temper.

4. That the remaining injuries are incapable of being accounted for by this incident.

5. That the only other explanation proffered by either parent for the remaining injuries (a single assault to the face of the mother in mid/late April 2001 while she was holding the child) fails to account for them for the following reasons:-

(a) in respect of the left tibia and the right 10^th rib, it is outside the chronological estimate according to the agreed medical evidence;

(b) the rib injuries were caused by two separate assaults to the chest, the account provides for one incident;

(c) the clavicle injury was likely to be caused by:-

(i) the child being dropped, or

(ii) pressure being exerted upon the clavicle.

neither of which are asserted within the explanation provided.

(d) The tibia injury was likely to be caused by a twisting, shearing injury which is inconsistent with the explanation provided.

6. In the absence of any other explanation provided by either parent which is accepted by the experts and capable of fitting with the agreed medical evidence neither parent is exculpated from responsibility for the injury sustained by the child."

8. As to the threshold criteria, the local authority invited the court to find that the children were suffering or likely to suffer significant harm attributable to the care given to them or likely to be given to them if the order were not made, not being what it would be reasonable to expect a parent to give to them for the following reasons:-

"1. The child L has suffered non-accidental injuries of a multi-site nature caused on different occasions.

2. The father caused the child to suffer a complex comminuted fracture of the left tibia parietal bone.

3. The remaining injuries remain unaccounted for and neither parent accepts responsibility for the same.

4. Those injuries were either:-

(a) caused by either or both of the parents; or

(b) occurred whilst the child was in the care of the parents and the parents whether individually or jointly failed to protect the child; or

(c) caused by persons unknown over a period not exceeding 3 weeks prior to 11^th May 2001 and were neither observed nor acted upon by either parent.

5. In the absence of accepted admissions and/or clear findings concerning the assaults upon the child L there is an unascertained and therefore unassessed risk posed by each of the parents to the child C."

The issues actually considered at the fact-finding hearing

9. We do not have a full transcript of the proceedings but what I understand to have happened is this. In the light of the father's admission that he had in temper so violently struck the child as to fracture her skull, the local authority submitted, relying on Lancaster County Council v. B [2000] AC 147, that the threshold criteria had been satisfied. That was obviously correct and not in dispute. It seems that the local authority went on to submit that it was consequently unnecessary to make any other findings as to who had caused the other injuries save that, repeating the sixth finding of fact it sought, "neither parent is exculpated from responsibility for the injuries sustained by the child." That was not satisfactory to the mother and the guardian ad litem who urged the judge to embark on an enquiry into the perpetration of those other injuries. The judge agreed to do so. It seems also to have been accepted that the judge should consider the extent to which the parents (and particularly the mother) had failed to protect L from harm.
10. That the hearing took that shape is apparent from the judgment. As for the threshold, the judge observed:-

"It is not disputed that the threshold criteria are met for the making of care orders. By reason of the father's admissions and his now incarceration, it is not suggested that rehabilitation with the father could be contemplated. The question does remain, can the children safely be rehabilitated with the mother?"

She noted that:-

"Counsel for the mother and the guardian urged that I should hear evidence with a view to identifying the perpetrator, if it were possible to do so. It would obviously be of great assistance to the local authority in making plans for the future of these two children. … Because of the urging upon me I decided that I would hear evidence. I have heard evidence, in particular, from both the mother and the father."

11. As for the failure to protect the child, the judge noted that:-

"She [the mother] said she could remember nothing about Wednesday, 9^th May. That, of course, was the evening upon which it is established that the father had punched this child so severely as to fracture her skull."

Later in her judgment she said:-

"As to the Wednesday evening when the skull fracture occurred, the father says that he came downstairs to the mother and that the child was screaming. I find it difficult to accept that the mother could not be aware of something amiss. That child had been struck so hard that it fractured the skull. She is telling me that she cannot recall anything of that evening at all, nor did she bring it to mind when at the hospital so soon after that had occurred."

12. That is apparently how the matter came before the judge, but I regret I am critical of the approach that was adopted. It has caused many of the difficulties which have made the point of this appeal so elusive to define.

Where matters went wrong.

13. This case started on 14^th May 2001 and the father admitted his responsibility for the skull fracture not long afterwards. It must, therefore, have been apparent from a very early stage in these proceedings that the threshold set by section 31 of the Children Act 1989 would be crossed without difficulty. There could never have been a serious issue about it. The child had suffered grievous injury and a parent had admitted responsibility. The case had none of the complications of Lancashire C.C. where it could not be established whether the parent or the childminder was responsible for the injury. Of course there were unresolved issues about the perpetrator of the other injuries and the mother's failure to protect but they did not have to be decided to satisfy section 31. They would have to be resolved in order to decide the second stage of the care proceedings, the so-called "disposal" stage, when the welfare of the child is the sole focus of the court's attention. Whether a care order or a supervision order or a residence order or no order is to be made depends on what is judged to be in the best interests of the child. That requires the application of the welfare checklist provided by section 1(3) of the Act. In this case the most relevant factors to which the court must have regard are first, what harm the child has suffered or is at risk of suffering, and secondly, how capable each of his parents is of meeting his needs. Translating that into specific issues in this case the relevant questions are whether the mother harmed her baby and whether either child is at risk of future harm from her. The court must also determine how capable she is of protecting her children from harm.
14. I am far from convinced that a preliminary hearing was necessary in this case. It seems to me that the parties would have been better advised to use the five days which had been allocated for this case (13^th-18^th March per Judge Brown's order) in order finally to dispose to the application. This was not a difficult case and the delays in the system are so horrendous that it was taking some ten months to obtain those dates. The result of Judge Downey's order was that the matter would have to come back in June and that has now been delayed until December. That is far too long to take to decide the future of these young children.
15. Assuming that a preliminary hearing was necessary, then it ought to be properly presented to the courts. It is the responsibility of solicitors and counsel for all parties to agree, or failing agreement invite the court to rule on, the issues which have to be resolved. That matter should have been ventilated at an early directions appointment attended wherever possible by those who will conduct the hearing. The question should then be formulated and drawn up in an order. That order should direct a preliminary hearing of those issues – or of the questions of fact which have to be resolved. The questions should be formulated in such a way as will permit the court on that preliminary hearing to answer yea or nay wherever possible or otherwise with the minimum narrative. At the preliminary hearing the order should be drawn which then records those answers. That did not happen in this case. That is why it is almost impossible to know exactly what is under appeal. It was all very sloppy.
16. If questions are properly formulated at the earliest opportunity then proper directions can be given as to the evidence to be filed to answer them. No more than is relevant to those issues should be admitted. I do not say that the questions once formulated are thereafter immutable. On the contrary, as the evidence unfolds the case may take a different shape but it is essential that, by the time the matter comes on for hearing, all parties know exactly what the court is being asked to decide.

The judgment in this case.

17. As part of the background the judge set out some of the troubled history of the mother who had a disturbed background and mental health problems. She had a son by a previous relationship but, for various reasons, had ceased to have any contact to him. She began her relationship with the second respondent in January 2000. There were sporadic incidents of violence. One was when she was 8 months pregnant with L when he struck her. The second was the incident on 25^th April to which the second respondent attributed the other injuries. The mother was adamant that no injury was caused to L on that occasion. She admits that she threw a glass at him after he had punched her. The father also alleged that the mother had a bad temper and had resorted to other acts of violence against him. There was a third incident at the hospital following L's admission when he struck her and kicked her so that she fell down the stairs. He admitted those matters to the judge "although not without a deal of dissembling and prevarication". He had falsely told the police there was only one incident of violence, namely that on 25^th April. He described her as a good mother and could not see her causing any injury to her children. She had throughout the proceedings and throughout the criminal investigations maintained the stance that she did not cause the injuries to her child and until she gave evidence, her case was that she did not believe the father had caused them. She could not explain the cause of the other injuries save to proffer a suggestion that L may have somehow caused the injury to her leg from the way she would "bang it" on the floor, but that was an explanation dismissed by the doctors. For the first time in the witness box she alleged that the father must be responsible for there was no other explanation. It was not suggested that the child was in the care of anyone other than the parents during the relevant period save for a few hours on the evening of Thursday, 10^th May, when the mother went to the hospital with stomach pains and the child was in the care of the mother's parents until the following day. In the course of the hearing it emerged that the child may have spent short periods of time in the care of a neighbour but in the end, as the judge found:-

"Neither parent has pursued any suggestion that either the mother's parents or [the neighbour] were responsible for these injuries. I find that these injuries, on the balance of probabilities, were caused whilst L was in the care of the parents."

18. In dealing with the standard of proof, she applied the decision of this court in Re G (A Child) (Non-Accidental Injury: Standard of Proof) (2001) 1 FCR 97 and said:-

"That case makes it clear that the same standard of proof should be applied in seeking to identify the perpetrator as in deciding whether non-accidental injury has occurred. The test is on the balance of probabilities as set out by Lord Nicholls in H and R (Minors) (Sexual Abuse: Standard of Proof) (1996) 1 FLR 80. To find a parent guilty of non-accidental injury, a very serious allegation, requires there to be sufficient evidence on which the court can rely. … That evidence cannot be trivial or unreliable."

19. Her findings about the other injuries were:-

"I find, on the balance of probabilities, that the rib fractures were not caused during the course of this incident as it has been described to the court by the parents," [i.e. the incident on 25^th April when the second respondent struck the mother]. "I place no reliance on the father's plea of guilty to section 20 as constituting an admission of being responsible for the injuries other than the fractured skull. … there is no explanation by either parent to account for these injuries. In respect of the injuries to the left tibia and the right 10^th rib, they are outside the chronological estimates, according to the agreed medical evidence, for them to have happened on 25^th April. The rib injuries were caused by two separate assaults to the chest. The clavicle injury to the child was either a dropping injury or an application of pressure to the shoulders. The tibia injury, a twisting, shearing injury. In the absence of any other explanation provided by either parent which is accepted by the experts as being capable of fitting the agreed medical evidence, neither parent is exculpated. As the local authority put it, the injuries were caused by either of them or both of them …"

20. Her conclusions as to the perpetrator or perpetrators of those other injuries were:-

"At the conclusion of their evidence, no explanation for any injuries other than the fractured skull emerged. The court has given this case very anxious consideration. I realise that the father admits causing one very serious injury. The question, it seems to me, that I go on to ask myself, because on his admission I am clearly satisfied that he did that, can I be satisfied he also caused the remaining injuries? There are, it seems to me, concerns about the situation. … The father says the mother has got a bad temper, that she has lifted a knife, she had thrown a glass, she has got angry with him. The father admittedly violent, aggressive and a liar. …

Whilst I might have suspicions about which of the parties caused the injuries, I am not in a position to say when the various injuries were sustained with precision and in what circumstances. I am not in a position to say with clarity which of the two parents inflicted the injuries. … I recognise the convenience of coming to a clear conclusion as to the perpetrator, but I have come to the conclusion that the evidence is not sufficient to exclude the mother and positively to identify the father as the perpetrator of the injuries other than the fractured skull."

The appellant's criticisms.

21. In the skeleton argument accompanying the notice of appeal the judge was said to have misdirected herself as to the standard of proof. Mr Ryder Q.C. did not pursue this before us and rightly so because the judge followed the authority of this court verbatim. Mr Ryder does, however, seek to advance a new argument as follows:-

"That it is wrong in law for the burden of proof of innocence to be placed upon the respondent to an application for a care order: to do so is a breach of Article 6(2) of the European Convention of Human Rights: the presumption is of innocence."

22. Interesting and informative as the European jurisprudence is, I do not need it to accept the point Mr Ryder seeks to make. It is clear domestic law that the burden of proof rests throughout on the applicant local authority to establish its case. If the local authority asserts whether for the purpose of the threshold criterion or for the purpose of the welfare considerations that a child has suffered harm at the hands of his or her parent or that there is a risk of the child so suffering, then it is for the local authority to establish that. If authority is needed, one finds it in In Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 in these passages in the speech of Lord Nicholls of Birkenhead:-

"The legal burden of establishing the existence of these conditions [the s. 31 criteria] rests on the applicant for a care order. The general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff or applicant must establish the existence of all the pre-conditions and other facts entitling him to the order he seeks. There is nothing in the language or context of s. 31(2) to suggest that the normal principle should not apply to the threshold conditions." (p.586A).

"It would be odd if, in respect of the selfsame none-proven allegations, the selfsame insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm to the child in the future. … if indeed this were the position, this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. Accordingly there is a real possibility that the child will suffer harm in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that s. 31(2) should work in this way." (p.591B-D).

23. Not only is there no burden on the parent to disprove the case alleged against him or her, but also there is no reason to believe that Judge Downey approached the case as if there were such a burden upon the appellant. I well understand, however, why Mr Ryder is concerned. The root of the trouble lies in the inelegant and improper sixth question posed by the local authority inviting the court to find:-

"In the absence of any other explanation provided by either parent which is accepted by the experts and capable of fitting with the agreed medical evidence neither parent is exculpated from responsibility for the injuries sustained by the child."

It is not for the parent to exculpate himself or herself. Of course Miss de Haas Q.C. for the local authority is correct in submitting that there is an evidential burden on the parents to provide some explanation for the injuries to their child which must have happened whilst the child was in the care of either or both of them, but that is not a legal burden of proof. Mr Ryder is correct to complain that a finding which the judge seems to have made to that effect is meaningless. The correct finding, and the only finding open to the judge to have made on the evidence she accepted was that the local authority had not established on a balance of probabilities that the mother had inflicted any harm at all. She said as much in arriving at her conclusion:-

"That the evidence is not sufficient to exclude the mother and positively to identify the father as the perpetrator of the injuries other than the fractured skull."

24. That finding has important consequences for the future conduct of this particular case. The failure of the local authority to establish that the mother did inflict harm has the effect that the case has to proceed on the basis that she did not inflict harm to her child. That is made clear by Lord Nicholls' speech at p. 590C:-

"There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose," and at p. 591(E),

"… a court's conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened."

25. There appears to have been a failure by the local authority to understand or accept that position. Mr Ryder has complained that the case is being prepared for disposal with experts engaged in assessing the mother but assessing her as if it is still open to the local authority to prove that she has harmed her child. The experts must make their assessment on the basis of the judge's findings that it is not proved that she has harmed her child with the consequence that the case has to be approached as if she has not harmed the child.
26. This court has held in In Re M and R (Child Abuse: Evidence) (1996) 2 FLR 195, 203 that:-

"If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s. 31 or a s. 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved.

To our minds there can be only one answer to this question, namely the same answer as that given by the majority in In Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubt. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse."

Applied to this case which is different in the sense that harm has been established, nevertheless the finding of the court is that the case against the mother cannot be elevated beyond suspicion that she may have harmed her baby. As I have indicated that does not establish that she did. On the facts of this case the fact of her harming the child in the past could be the only basis for asserting a risk of her harming the child in the future. The suspicions and doubts do not establish a risk of future harm by her. In my judgment, this case must proceed henceforth upon the clear basis and understanding by all concerned, lawyers, social workers and experts, that L was not harmed by her mother and there is no risk that either L or C is at risk of suffering physical harm from her.

27. That leaves the question of her failure to protect L. Mr Ryder submits that the judge may not have given this part of the case the consideration it warranted because of the way she was asked to approach it. I am satisfied that she did approach the case on the basis that she was required to make a finding about protection or the lack of it.
28. She accepted that the head injury occurred on Wednesday, 9^th May. The child was only taken to hospital more than forty-eight hours later. The judge found it difficult to accept that the mother could not have been aware of something amiss. Although her language is a little tentative, I am satisfied she made the finding that the mother must have been aware that her child had been hurt. Mr Ryder seeks to attack that finding by challenging the date of the injury and by endeavouring to suggest that the events all happened on the Friday and that the mother was swift in her response to the obvious injury. That argument cannot run. Mr Ryder relied in part on medical evidence but Miss de Haas was swift to point out that Doctor Sills was dealing with the ankle injury which was probably sustained on the night of 11^th May 2001, not the head injury. The medical evidence as to the timing of the fracture of the skull was that it could not be more precisely estimated than that it occurred within a week before the radiological examination. There is, however, another fatal flaw in the mother's submissions. The fact is that she never challenged the father's evidence which was consistent with his police interviews that he had lost his temper on the Wednesday. In my judgment a finding of a failure to protect was inevitable in the sorry circumstances of this case and the attempt to appeal against it must fail.
29. As the threshold is established and as the finding that the mother failed to protect L stands, Mr Ryder's rather tentative suggestion the applications be dismissed cannot be sustained. The court must proceed to the disposal stage and decide what orders are dictated by the respective children's welfare, treating each child's case separately in the usual way.

The result.

30. I said at the beginning of this judgment that it was difficult to know what this appeal was all about. Mr Ryder has not established any his criticisms of the judgment but the mother is at least entitled to clarification of the order which has been drawn. That order must be amended in order to recite the findings of fact made by the judge. Moreover, in view of the erroneous way in which the case is being prepared for disposal, it should also recite the effect of those findings. Since that has improved the lot of the mother and reined in the unjustified assessments being conducted by the local authority and/or the guardian ad litem for the disposal of this case, the mother has had the greater success and the appeal should be treated as if it is allowed. I would allow the appeal and vary the order so as to provide an opening paragraph as follows:-

"Upon the preliminary issue of finding facts material to the applications for care orders, the court finds and declares that:-

1. On 9^th May 2001 the second respondent caused a comminuted fracture to L's left parietal bone through the deliberate infliction of a single blow struck in temper.

2. In consequence thereof L has suffered and C is likely to suffer significant harm attributable to the care given to L and likely to be given to C if the order were not made, not being what it would be reasonable to expect a parent to give her and him within the meaning of s. 31(2) of the Children Act 1989.

3. Furthermore L has suffered harm and C is at risk of suffering physical harm from the second respondent.

4. L sustained further injury caused on different occasions namely:-

(i) an undisplaced fracture of the midshaft of the left clavicle;

(ii) fractures of the left 7^th and 8^th ribs;

(iii) fractures to the right 5^th, 6^th and 10^th ribs; and

(iv) a bucket-handle fracture of the lower shaft of the left tibia.

5. It is not established upon a balance of probabilities that any one or more of these further injuries were caused by either the first or second respondent.

6. Accordingly the first respondent must be treated as if she did not cause L to suffer any significant harm and as if C is not likely to suffer significant harm within the meaning of s. 31(2) of the Act. Moreover she is to be treated as if she has not caused L to suffer any physical harm or caused L or C to be at risk of suffering physical harm from her within the meaning of s. 1(3)(e) of the Act.

7. The first respondent has caused L harm by failing to protect her from injury by the second respondent."

31. Paragraph 1 of the judge's order should be amended to direct that a transcript of her judgment should not only be served on all parties but should be disclosed to the experts reporting for the purpose of the disposal of the application. The order of this court should also direct that a copy of this judgment be prepared at public expense, served on all parties, and disclosed to the experts.
32. The practical result of this appeal is that the disposal of the applications should now concentrate on the mother's ability to protect her children from future harm and an assessment of that risk. Since she is separated from the father, the children do not appear to be at further risk from him. The scrutiny must be upon the mother's ability to protect her children from any future partner with whom she may consort. How capable she is of meeting her children's needs should now become the focus of everyone's attention. The court will need to consider what directions are necessary to give effect to this judgment and to ensure an expeditious outcome to the pending applications.
Order: appeal allowed to extent set out in judgment; transcript of judgment to be provided at public expense to all parties and to be disclosed to experts advising in the case; no order for costs save public funding assessments where appropriate; counsel to lodge an agreed minute of order. (Order does not form part of the approved judgment)