By Tony O’Reilly And Lucy Caulkett-
The Court of Appeal has criticised a family court judge after, delivering a pointed reminder of the importance of careful judicial reasoning in family cases, overturning findings that two young children had suffered deliberately inflicted injuries after concluding that a family court judge’s decision-making was fundamentally flawed.
In a judgement likely to resonate across the family justice system, senior judges criticised the decision to deliver an extemporaneous oral judgement in a medically and legally complex case, warning that such an approach carries significant risks where the evidence requires detailed analysis.
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The ruling not only clears the way for the case to be reheard but also raises wider questions about how family courts should deal with difficult expert evidence in proceedings that can have life-changing consequences for children and parents alike.
The appeal arose from care proceedings involving two children, identified only as B and G, in which Her Honour Judge Kushner concluded that injuries sustained by the children had been deliberately inflicted by one or both of their parents. Those findings formed a central part of the local authority’s case and carried potentially profound implications for the future of the family, including decisions about whether the children could remain in their parents’ care.
However, the Court of Appeal has now ruled that those findings cannot stand.
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Giving the leading judgement, Lord Justice Baker, with whom Lady Justice Andrews and Lord Justice Holgate agreed, concluded that the judge’s analysis of the evidence was insufficient to support the findings she made. The appeal judges found that the medical evidence was “far from conclusive” and that the trial judge’s assessment of that evidence was flawed.
As a result, the Court of Appeal allowed the parents’ appeal and ordered that the fact-finding exercise be heard again before a different judge. The case has been remitted to the Family Presiding Judge for the South Eastern Circuit for fresh consideration.
Although appellate courts are traditionally reluctant to interfere with findings of fact reached by trial judges, particularly in family proceedings where judges hear witnesses first-hand, the court concluded that this was one of the relatively rare cases where intervention was justified.
Central to the appeal was not simply the outcome reached by the judge but the manner in which the judegment itself had been delivered. Lord Justice Baker observed that it was “clear from reading the judgement” that Judge Kushner had not been reading from a prepared written text but had instead delivered her decision from notes. The resulting judgement, he said, lacked structure and was presented in an informal, discursive style.
“There is nothing inherently wrong with that,” he acknowledged.
Nevertheless, he warned that the approach became problematic where the evidence was particularly technical or disputed. “It is, however, a hazardous course to take in a case, like this, where the evidence is complex. The risk is that something important is omitted.”
That warning lay at the heart of the Court of Appeal’s reasoning.
Fact-finding hearings occupy a critical stage in many public law family proceedings. Before the court can decide what arrangements are in a child’s best interests, it must first determine what actually happened. Those findings often shape every subsequent decision, from whether children remain with their parents to whether adoption or long-term foster care becomes necessary.
Unlike criminal proceedings, where allegations must generally be proved beyond reasonable doubt, family courts determine disputed facts using the civil standard of proof—the balance of probabilities. Even so, findings that parents deliberately injured their children are among the most serious conclusions a family judge can reach and require careful evaluation of all available evidence.
Such hearings frequently involve competing expert medical opinions, forensic analysis, social work evidence and detailed witness testimony. Judges must not only decide which evidence they accept but explain why they have accepted it and rejected competing interpretations.
That duty to provide clear reasons is regarded as a cornerstone of judicial decision-making. It enables the parties to understand why they have won or lost, ensures transparency in the administration of justice and allows appellate courts to scrutinise whether the correct legal approach has been followed.
The Court of Appeal concluded that those standards had not been met in this case.
Allowing the appeal, Lord Justice Baker said the findings that the children’s injuries had been deliberately inflicted could not safely stand because the judge’s evaluation of the medical evidence was flawed. The court emphasised that the expert evidence did not point unequivocally towards non-accidental injury and required considerably more careful analysis than the judgement demonstrated.
Lady Justice Andrews delivered an equally robust concurring judgement, using the case to highlight broader lessons for judges across the family courts. While recognising that judges must remain free to decide whether to deliver oral judgements immediately after a hearing or reserve written judgements for later delivery, she said some cases plainly require the latter course.
“In my view,” she said, “because of the nature and complexity of the issues, this case fell within that category, and it was most unwise of the judge to embark on the course which she did.”
Her comments are likely to attract particular attention because they address an issue faced daily throughout the family justice system. Family courts operate under intense pressure, with judges managing substantial caseloads amid continuing concerns over delays, increasing demand and limited judicial resources. Delivering judgements orally can help reduce waiting times for families and avoid the need for lengthy adjournments while written decisions are prepared. Efficiency cannot come at the expense of accuracy.
Lady Justice Andrews pointed to one of the principal safeguards built into the preparation of reserved written judgements. Before such judgements are formally handed down, draft copies are commonly circulated under embargo to the parties’ legal representatives. That process allows lawyers to identify typographical errors, factual inaccuracies or significant omissions before the judgement becomes final.
“The practice of circulating a draft of a reserved written judgement under embargo gives the parties’ legal representatives the opportunity to draw the judge’s attention to omissions or mistakes, which can then be addressed before the judgement is handed down,” she said.
“This case provides a graphic illustration of what can go wrong if that course is not followed.”
The judgement is likely to be closely studied by family judges, barristers and solicitors because it highlights the delicate balance between judicial efficiency and the need for rigorous legal reasoning.
Family court proceedings are often conducted in private to protect children, meaning relatively few judgements become publicly available. When appellate courts publish decisions criticising judicial practice, they frequently serve as guidance for the wider judiciary rather than merely resolving the dispute between the parties.
Legal practitioners say the decision reinforces the importance of structured judgements in cases involving disputed medical evidence, particularly allegations of non-accidental injury. Such cases are among the most difficult heard by the Family Court because medical experts may disagree over whether injuries were caused deliberately, accidentally or by an underlying medical condition.
The Court of Appeal did not determine that the injuries were accidental, nor did it absolve either parent of responsibility. Instead, it concluded that the reasoning supporting the original findings was legally inadequate and that the issues must be reconsidered afresh.
That distinction is significant. The court has not substituted its own findings of fact but has directed that another judge conduct a fresh evaluation of the evidence. The parents therefore remain neither exonerated nor found responsible as the case returns to the Family Court for rehearing.
The ruling also underscores the high threshold expected of judicial reasoning where findings carry lifelong consequences. Decisions made during care proceedings can permanently alter family relationships, determine whether children remain with their parents and influence future proceedings involving the same family.
For that reason, appellate judges stressed that complex cases demand equally careful judgements. The Court of Appeal’s message is clear: while oral judgements remain an important and legitimate feature of modern family justice, there are some cases where only a carefully prepared written judgement can adequately address the complexity of the evidence and the gravity of the issues before the court.
As the case returns for a fresh hearing, the decision is expected to have implications far beyond this family’s circumstances, reinforcing the standards of judicial reasoning expected in some of the most sensitive and consequential proceedings heard in the English family courts.
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