E (Children: Reopening Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Moylan,Lord Justice Floyd |
| Judgment Date | 14 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1447 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/1286 |
| Date | 14 August 2019 |
[2019] EWCA Civ 1447
Lord Justice Floyd
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2019/1286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWPORT (GWENT) COUNTY COURT AND FAMILY COURT
HHJ Furness QC
CF18C00077
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain Alba (instructed by Keppe Rofer) for the Appellant
Mother Hayley Daniel (instructed by Torfaen County Borough Council) for the Respondent Local Authority
The Respondent Father attended in person
Rhian Jones (instructed by Caswell Jones Solicitors) for the Respondent Children through their Guardian
Hearing date: 30 July 2019
Approved Judgment
Introduction
Welfare decisions made by the family court are based on an assessment of the relevant facts. In care proceedings, facts establishing the threshold are a precondition to making any order at all. Depending on their gravity, findings of fact may be highly relevant to, or even determinative of, the welfare decision, not only in the proceedings in which they were made, but also in other proceedings about the same child or proceedings about different children. An incorrect finding one way or another can have lasting consequences. Consequently, the court goes to great lengths to ensure that its findings of fact are reliable, and the normal process of appeal should ensure that unjustified findings are not allowed to stand. At the same time, the public interest in justice must be balanced against the public interest in the finality of litigation and there are proper limits on the extent to which the court will allow its findings of fact to be revisited.
This appeal calls for consideration of the options open to someone wishing to challenge findings of fact in family proceedings on the basis of further evidence that was not available at the trial. Do they have to appeal? Or can they apply to the trial court? And if they can do both, which is the better course?
The appeal
It is an appeal by the mother of three children, now aged 9, 4 and 2. They are members of the traveller community who now live with their paternal grandmother. In January 2018, they were removed from their mother after the youngest child, N, then aged 10 months, was found to have three cigarette burns on her arm. The mother, a smoker, gave differing accounts of how that had happened.
After a trial during which evidence was given by a range of witnesses including Dr Goodwin, a consultant dermatologist, His Honour Judge Furness QC found the mother's evidence unreliable and determined that the injuries were either inflicted deliberately or caused by seriously culpable negligence. On 31 August 2018, he made care orders, which were not the subject of an appeal at the time. At the case management stage, unsuccessful applications for further expert evidence in relation to how the injuries might have been caused had been made to another judge by the mother and by the Guardian.
The mother's accounts had included: that the injuries were caused when N was with her grandmother; that they were caused when the door of her caravan was blown onto her own arm by the wind, causing her to drop her cigarette and propelling the burning tip in a different direction and onto N; that this happened when she was bumped into by her eldest child running past her. At trial, the mother said that her earlier accounts were untrue and the judge did not accept her latest account, also finding that she had asked the children's father and the older child to back up her lies. He found the description of the cigarette falling one way and the tip falling the other way mechanically improbable. He noted that the evidence suggested at least two applications of heat to the skin. He found that the mother had no explanation for her account that N had not screamed with pain at the moment she was burned.
There was however a parallel criminal investigation. The police consulted Mr Colin Rayner, a forensic burns consultant and forensic plastic surgeon, who in a substantial report produced in October 2018 opined that an account he understood the mother to have given represented a plausible accidental explanation for the burns; in consequence there have been no criminal charges.
On receiving Mr Rayner's report, the mother immediately tried to challenge the findings against her. By her appellant's notice filed on 24 May 2019 (the protracted delay arising from ultimately unsuccessful attempts to obtain legal aid) she applied for permission to appeal out of time and for permission to file the new report, arguing that it undermined the judge's findings and that a retrial should be ordered. The local authority and the Guardian opposed the application on the basis that the account found plausible by the author of the report was not the one that the mother eventually gave and that her lack of credibility was unaffected by the further evidence.
By way of further explanation, the evidence of Dr Goodwin in his report was that photographs showed that the injuries appeared to be significant burns from a cigarette that were likely to have been caused by prolonged contact at two separate sites. Giving evidence, he expressed the view that the contact was likely to have lasted for more than a second, and that the circular shape of two of the marks was suggestive of a cigarette burn. However, he did not profess to have extensive expertise in the matter. For his part, Mr Rayner considered that the appearance in the photographs was consistent with the injuries having occurred at around the time they were discovered. He found nothing in the appearances to suggest either of the two recognised forms of cigarette injury: a direct stub type of injury or a typical accidental brushing pattern. The parties agree that Mr Rayner's more detailed consideration of the appearances was not available to the judge in other evidence, and that it is at least of possible relevance to the finding that the injuries may have been inflicted deliberately.
When pursuing the route of an appeal out of time, those then advising the mother believed that it was the only course open to her. That belief was understandable, being based upon a statement now in the Red Book 2019 at p.2247 that the first instance court has no jurisdiction to re-open findings of fact once an order is sealed, a statement that reflects obiter observations made by this court in Re G (A Child) [2014] EWCA Civ 1365, to which I will refer again below.
On 2 July, I granted permission to appeal, extended the time for appealing, and admitted the report in evidence. In doing so, I noted that it was not clear that the appeal would have a real prospect of success, but that it was not beyond argument and that there was a compelling reason for it to be heard so that this court could address the questions mentioned above.
On 30 July, we heard the appeal and told the parties of our decision in these terms:
(1) We confirmed that the report of Mr Rayner was to be admitted on the appeal.
(2) We agreed with the submission made by Mr Alba for the mother that in these circumstances the better course for determining the consequences of that further evidence was by way of an application to the trial judge.
(3) We treated the mother as having made such an application.
(4) We directed that the matter be listed for directions before HHJ Furness QC as soon as possible so that he could consider whether, and if so, how his findings of fact should be reopened.
(5) We considered that the further evidence might have an important influence on the outcome, at least in relation to the question of whether N had been burned deliberately, but emphasised that the extent of its significance was a matter for the judge.
(6) In the circumstances, and without expressing a view on its merits, we dismissed the appeal as being a less appropriate means of resolving the matter.
By the end of the appeal hearing, the parties did not significantly dissent from the course taken by the court. Mr Alba did not concede his appeal, and nor did Ms Daniels for the local authority and Ms Jones for the Guardian concede their opposition to it, but all were agreed that as a general proposition, the trial judge was a more suitable arbiter than this court could be of the issues that have arisen. This constructive, child-centred approach is commendable.
As can be seen above, we concluded that the Ladd v Marshall criteria were satisfied in relation to Mr Rayner's report and that it was properly admitted on this appeal. However, as is apparent from our decision, we considered that it had been open to the mother to have made an application directly to the trial court and that an appeal was not her only remedy.
The remainder of this judgment contains my analysis of the procedure by which findings of fact may be challenged on the basis of further evidence, that analysis being the basis upon which I joined in our decision.
Applications and appeals based on further evidence
Applications and appeals involving further evidence in family proceedings are perhaps more common than they were; one reason is that the proceedings are shorter, which means that they are commonly completed before the criminal trials from which the further evidence may originate. Another scenario involves a party giving further information after an adverse finding has been made, something that the court encourages. The challenge may then arise in a range of circumstances:
(1) On an appeal on the basis of further evidence, usually an appeal out of time.
(2) On an application within continuing proceedings – for example, between a fact-finding hearing and a welfare hearing.
(3) In proceedings concerning the previous order – for example an application to discharge a care order or an application for contact.
(4) In...
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