Court of Appeal sets aside pool finding against mother over a toddler’s bruises

The Court of Appeal on 31 July 2026 allowed a mother's appeal against a finding that she might have bruised her young son, and substituted a finding that her former partner probably caused those bruises.

In the Court of Appeal (Civil Division), Lord Justice Peter Jackson, with Lord Justice Newey and Lady Justice Falk, dealt with an appeal from the Family Court at Swindon. The child is called Alfie in the judgment, which is anonymised.

Background

Alfie was born in April 2023. In September or October 2024 the mother's new partner moved into her home and began to take on a substantial role in his care. The couple separated on 22 January 2025. On 23 January 2025 the mother took Alfie to a minor injuries unit, and a Child Protection Medical assessment revealed a range of fractures. He came into police protection and was placed in foster care the next day. Care proceedings were issued on 31 January 2025.

After a hearing lasting 13 days, HHJ Richard Case gave a 91-page reserved judgment on 29 May 2026. He found that the former partner, who was an intervenor in the case, deliberately inflicted serious injuries on Alfie on eight separate occasions between 11 October 2024 and 17 January 2025. These included a skull fracture, an arm fracture and rib fractures. He also found that the mother failed to protect Alfie and failed to seek appropriate medical attention.

The judge could not determine who caused bruising to Alfie's groin, left ear and right hip. He found a real possibility that the former partner or the mother inflicted it. That is known as a pool finding. The groin bruising was dated to around 22 January 2025, the ear bruising to between 19 and 23 January 2025, and the hip injury to before 23 January 2025.

The former partner began giving evidence but withdrew after becoming unwell, and did not complete it. The mother did not appeal the findings of failure to protect or to seek medical attention, and the intervenor did not challenge the serious findings against him. The appeal concerned only the pool finding.

The question

Was the pool finding against the mother sound, given the judge's other serious findings against the former partner and the fact that he was not cross-examined in full?

The decision

After full argument, the Court of Appeal allowed the appeal. The pool finding was set aside and replaced with a finding that, on the balance of probabilities, the former partner inflicted the three areas of bruising.

The grounds

The mother's grounds of appeal included that the judge's reasons did not support the pool findings against her, that he failed to examine each potential perpetrator individually in the context of the other findings and the wider evidence, and that he failed to consider how the evidence of the mother and the former partner should fairly be assessed when the former partner withdrew and could not be cross-examined in full.

Granting permission to appeal on 7 July 2026, Lord Justice Peter Jackson said the appeal had a real prospect of success. He referred to Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, which says that where there is an imbalance of information about some individuals compared with others, particular care may be needed to ensure the imbalance does not distort the assessment of the possibilities.

Sources

• B (A Child: Uncertain Perpetrator), Re [2026] EWCA Civ 1024, Court of Appeal (Civil Division), 31 July 2026