Re G (A Child: Scope of Fact-finding) [2025] EWCA Civ 1044 [ 31 July 2025]
Court of Appeal (Civil Division)
Peter Jackson LJ (lead), Bean LJ (agreeing), Baker LJ (dissenting)
Background
This was a complex case concerning whether the court should conduct a fact-finding hearing into the death of a mother’s first child, Z, when deciding the future of her second child, X.
The mother (“M”) had a chaotic and troubled upbringing. She became a mother at 16, shortly after being made the subject of a full care order. Her baby, Z, died at five months old in December 2018 after being found unresponsive in his cot. Medical evidence pointed to injuries consistent with shaking or impact trauma, but the coroner returned an open verdict and the police brought no charges.
In 2025, M had another baby, X. Amid concerns about her mental health, use of cannabis, and difficulty engaging with professionals, the local authority (LA) issued care proceedings and as part of its threshold sought findings that M had caused Z’s death in 2018 — arguing that without such a determination, the risks to X could not be properly assessed.
HHJ Willans, sitting as a Deputy High Court Judge, refused to hold a fact-finding hearing and delivered a detailed judgement explaining that it was neither necessary nor proportionate to revisit Z’s death. He found that professionals could assess risk to X based on M’s current behaviour and vulnerabilities without formally determining what happened seven years earlier.He also cited delay, cost, fairness, and emotional impact as further reasons against reopening the past, concluding that “the focus of the case should be on the circumstances now as opposed to then.”
The LA and the children’s guardian appealed.
The Appeal
The LA and guardian argued that the judge was obliged to order a fact-finding because courts must assess risk based on proven facts, not speculation. Without determining whether M had caused Z’s death, they said, professionals could not fairly gauge the likelihood of future harm to X.
The Majority Decision
Peter Jackson LJ, with whom Bean LJ agreed, dismissed the appeal. He held that judges enjoy a wide discretion in deciding whether fact-finding is necessary and that HHJ Willans had taken a “clear-sighted and legally coherent” approach.
Peter Jackson LJ sets the case in the context of statute and authority, with particular reference to the leading decisions in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35 and the decisions, most recently Re T (Risk Assessment) [2025] EWCA Civ 93, which set out the proper approach to risk assessment.
Key points from Jackson LJ’s reasoning included:
Here’s a clear bullet-point summary of that section of the judgment (Peter Jackson LJ’s analysis and conclusion):
Key Points from the Court of Appeal’s Reasoning (Peter Jackson LJ)
- Judges must make reasoned, practical projections about whether directions (like fact-finding) will promote the overriding objective of dealing with a case justly.
- In deciding whether to hold a fact-finding, the judge compared likely outcomes if it were held or not, taking a fair and realistic view of the available evidence.
- Possible outcomes of a fact-finding were: a) M caused Z’s death; b) a “pool” finding including M; or c) the allegation was unproven. The judge reasonably considered outcome (a) when making his comparison.
- Evidence suggested a single impulsive act (shaking) rather than prolonged or cruel treatment.
- The LA’s case on risk to X was already based on M’s character and mental health; therefore, the judge could assess risk without resolving whether she caused Z’s death.
- The court may consider future risks of serious harm without needing past findings of equally serious harm.
- This was not a single-issue case so the threshold and risk assessment did not depend solely on the earlier incident.
- In circumstances where the LA’s clear, evidence-based case was that X was at risk of physical harm arising out of M’s character and mental health, the judge was entitled to reject the submission that the risks to X could not be assessed without a determination of whether M caused Z’s death;
- A fact-finding might be useful but was not necessary or proportionate given its disadvantages (delay, cost, and impact).
- Care planning had already been happening without resolving Z’s death, and any future change in plans would depend on current circumstances, not historic events.
- A fact-finding was unlikely to add clarity after 7–8 years; it might confirm the medical cause but shed little new light. The judge was entitled to weigh the limited value against the significant cost and delay.
- Bean LJ agreed, noting that the key question was whether care planning for X would materially differ if it were proved that M caused Z’s death — and the judge was entitled to conclude it would not.
The Dissent
Baker LJ strongly disagreed.
He argued that it was impossible to assess the true nature and degree of risk to X without knowing whether M was responsible for Z’s fatal injuries.
Without such a finding, professionals would either have to assume the worst or ignore Z’s death altogether — both “unfair and dangerous to the child.”
He emphasised that:
- The likelihood of serious harm to X would be “of much greater significance” if it were proved that M had caused Z’s death.
- The type of risk and the focus of future assessment would differ entirely depending on that finding.
- The importance of knowing the truth outweighed the disadvantages of cost and delay.
Baker LJ would have allowed the appeal and ordered a fact-finding before a different judge.
Outcome
The appeal was dismissed.
The majority held that the trial judge acted within his discretion in declining a fact-finding hearing. The Court of Appeal confirmed that not every unresolved historic event must be litigated, even when it involves the death of a previous child, if the current risk can be properly assessed without it.
Comment
Re G illustrates the fine balance between understanding past harm and focusing on present welfare. The decision underscores the court’s pragmatic approach to managing complex care cases — resisting the pull to “litigate history” when it would add little clarity but much delay.
Baker LJ’s dissent, however, highlights the enduring tension in child protection law: how to safeguard the next child without knowing, for sure, what happened to the last.
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