Civil evidence – Local government – Care proceedings

H v City & County Of Swansea & Ors: CA (Civ Div) (Lady Justice Arden, Lords Justices Black, Richards): 2 March 2011

The appellant mother (M) appealed against findings of fact made during the course of care proceedings brought by the respondent local authority in respect of one of her children (C).

C, who was just over a year old at the relevant time, had been found to have multiple unexplained bruises. The police and local authority became involved and care proceedings were commenced. At a fact finding hearing, the parties accepted that the injuries had been inflicted upon C. The judge examined a record of text messages, obtained by the local authority that had been exchanged at the relevant times between M, her then partner (P) and P’s mother (X) which tended to show that M did not know how the injuries had occurred. The judge heard evidence from P that M had ‘freaked out’ in the immediate aftermath of discovering the injuries. The judge went on to find that M had, ultimately, lied about ending her relationship with P soon after the incident but that she had taken steps to inform the authorities, remove herself from the house and seek medical help. He limited the pool of perpetrators to M, P and X. On appeal, the local authority and C's guardian consented to the pool being further limited to P and X. P and X opposed M’s appeal. M submitted that (1) the text messages clearly indicated that she did not know what had happened to C and were either a sophisticated and devious decoy designed to implicate P after the event or a genuine representation of her struggle to understand how the injuries had occurred; (2) the judge did not set out his reasons for including M in the pool of perpetrators and that it was not a necessary step from M having lied about her continuing relationship with P to having lied about C’s injuries.

Held: (1) Firstly, the text messages were a valuable contemporaneous record. The judge did not make any finding that M’s part of the exchange was a devious attempt to set up a false trail. If it had been her intent from such an early stage to exculpate herself by this quite sophisticated ruse, it was highly unlikely that she would have been content to await the accident of the local authority seeking the text records in order to unveil the evidence. In the absence of any real evidence that those texts were a decoy, the proper conclusion for the judge was that M was genuinely struggling to understand how the injuries were caused and by whom. They were, therefore, a powerful piece of evidence against her inclusion in the pool of perpetrators. Secondly, P’s own evidence that M had ‘freaked out’ was entirely consistent with the picture which emerged from the texts. M’s immediate reaction together with the prompt steps that she took to remove herself and C from the house and seek medical help and to inform the authorities gave support to her case that she was not responsible for what happened to C (see paragraphs 22, 24 of judgment).

(2) It was essential for the judge to have considered M’s lies and her presence during part of the critical period against the factors that pointed away from her having been responsible for C’s injuries, particularly the text messages, P’s description of her immediate reaction and the steps she took in the immediate aftermath. The judge did not complete that part of the exercise. His finding about the pool of perpetrators was therefore flawed. Had he considered all the relevant factors, he would necessarily have concluded that it was not appropriate for M to remain in the pool of perpetrators (paragraph 28). (3) The case was not one where it would be necessary or appropriate for the matter to be remitted to the court below for further consideration but rather a case in which the instant court should substitute the alternative finding for which M had contended (paragraph 28).

Appeal allowed.

Stephen Cobb QC (instructed by Smith Llewelyn Partnership) for the appellant; Matthew Rees (instructed by in-house solicitor) for the respondent and the guardian.