H-M (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Lord Justice Singh,Lord Justice Peter Jackson |
| Judgment Date | 19 May 2021 |
| Neutral Citation | [2021] EWCA Civ 748 |
| Date | 19 May 2021 |
| Docket Number | Case No: B4/2021/0620 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 748
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT WATFORD
HHJ Vavrecka
WD18C00729
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Singh
and
Lord Justice Stuart-Smith
Case No: B4/2021/0620
Susan Campbell QC and Rachel Temple (instructed by All Family Matters) for the Appellant
Mother Hannah Markham QC and Laura Williams (instructed by Hertfordshire County Council) for the Respondent Local Authority
Rachael James (instructed by Bretherton Law) for the Respondent Children by their Children's Guardian
Penny Howe QC and Saiqa Chaudhry (instructed by Hepburn Delaney Solicitors) for the Intervenor
Hearing date: 11 May 2021
Approved Judgment
Introduction
This is an appeal from the refusal of an application to reopen findings of fact made in family proceedings. At the end of the appeal hearing, we informed the parties that the appeal would be dismissed. These are my reasons for agreeing with that decision.
The application to reopen was made in the light of the different outcomes in family and criminal proceedings. In broadest summary, the Family Court found that very serious injuries to a one-year-old child were caused either by the appellant mother or by KF, her then boyfriend, and that it was not possible to say which was responsible. In the criminal proceedings, KF was convicted of causing the injuries and the mother was acquitted on those counts, although she was convicted of child cruelty for lying to professionals and preventing the child from getting medical treatment.
The family proceedings, which began in July 2018, have a considerable procedural history. In the summer of 2019, His Honour Judge Vavrecka (‘the Judge’) conducted a three week hearing, leading to the findings of fact and a full judgment in November 2019. Meanwhile, the criminal trial took place in October 2019. The mother at first applied ineffectually for a reopening of the findings of fact, but in the end she chose to appeal. Her appeal, delayed for a variety of reasons, was heard in October 2020 by McCombe LJ, Baker LJ and Roberts J. It was dismissed, with Baker LJ giving the substantive judgment: see T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25. The mother then renewed her application to reopen the findings of fact on the basis of new evidence, and that application was refused by the Judge on 19 March 2021 at a two day hearing. The mother again appealed, with permission granted by Baker LJ, and we heard her appeal on 11 May 2021.
The first appeal
The history up to October 2020 is fully set out at paragraphs 1 to 24 of the judgment of Baker LJ. Between paragraphs 25 and 33, he summarised the Judge's lengthy fact-finding judgment. He then addressed the grounds of appeal in turn. Those were that (1) the findings of fact were incompatible with the criminal verdicts; (2) the Judge was wrong not to draw adverse inferences from KF's refusal to give evidence in the family proceedings; and (3) the assessment of KF's evidence was inadequate. He also addressed an application for the admission of evidence from a further expert in odontology (Professor Pretty), who had given evidence in the criminal proceedings.
At the first appeal, the mother was represented by Mr Ian Peddie QC, who very sadly died earlier this year. As to ground 1, Baker LJ said this:
“35. … Overall, it was Mr Peddie's submission that the Crown Court had carried out a more complex analysis of what had happened to J. As a result, the mother was completely exonerated as either a principal or secondary actor in the abuse perpetrated on the boy.
36. The problem with this argument is that it is not a valid ground of appeal against the judge's findings in the care proceedings. Instead, as Ms Penny Howe QC pointed out on behalf of KF, it is really a challenge to the judge's refusal to reopen the findings after the conviction at trial. In the skeleton arguments filed on behalf of the appellant in support of this appeal, Mr Peddie at more than one point cited Re Q (Fact-finding Rehearing) [2019] EWFC 60, which is a decision on the reopening of findings in care proceedings following an inconsistent verdict in parallel criminal proceedings.
37. In my judgment, neither the fact that a jury has reached a verdict on criminal charges that is inconsistent with earlier findings in care proceedings nor the simple fact (if it be true) that the evidence heard by the jury was different from, or more comprehensive than, that adduced before the judge in the family proceedings is sufficient by itself to justify the conclusion that the findings in the family proceedings were wrong so as to require an appellate court to overturn the findings. It may, however, be sufficient to justify a reopening of all or part of the fact-finding hearing. I shall return to this point of the end of this judgment.”
At paragraphs 39 to 45, Baker LJ gave reasons for refusing to admit the evidence of Professor Pretty on appeal. In summary, he did not accept that if the report for the criminal proceedings had been available at the fact-finding hearing, it would have had an important influence on the outcome of the case. The existence of the range of opinions expressed in the report was known to the lawyers representing the parties at the fact-finding hearing and to some extent it was canvassed before the Judge.
At paragraphs 46 to 52, Baker LJ considered grounds 2 and 3 concerning adverse inferences and the assessment of KF's evidence, reaching this conclusion:
“51. It follows that Judge Vavrecka was not obliged as a matter of law to draw an adverse inference against KF from his refusal to answer questions. He plainly considered the submission that he should draw such an inference and, in my judgment, cannot be criticised for rejecting it. Furthermore, although he declined to infer from his refusal to answer questions that KF was the perpetrator of the injuries, he took his failure to give evidence into account in his overall analysis, and the fact that he was as a result left with important questions unanswered was a material factor in his conclusion that KF could not be excluded from the pool of perpetrators of the injuries. His careful and considered balancing of this aspect, alongside his detailed analysis of the mother's credibility and the lies she had told during the investigation, was plainly within his discretion as the trial judge.
52. In support of the further ground of appeal, Mr Peddie put forward a number of criticisms of the judge's evaluation of KF's written evidence. In my judgment, none of these give rise to a legitimate challenge in this Court. The judge's evaluation of this evidence was measured and careful and I can see no basis on which an appellate court would be entitled to interfere.”
For those reasons, the mother's appeal from the fact-finding judgment was dismissed.
Finally, between paragraphs 55 and 62, Baker LJ considered in detail the alternative route that might be available to the mother in the form of a further application to reopen the findings of fact. In doing so, he referred to a number of authorities, including Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, and he concluded his judgment in this way:
“60. … [In] the present case an application was made to the judge on two occasions to reopen the fact-finding hearing. Both applications were refused. Each application was, however, made orally, with no formal notice of application and without identifying with any particularity the evidence and other material on which it was based. In those circumstances, it is unsurprising that the applications were refused at that stage and it would not be appropriate for us to adopt the course taken by this Court in Re E.
61. It is, however, open to the appellant to make a further application to the judge to reopen the fact-finding hearing. It must plainly be on notice, identifying the evidence and other material on which it is based. At the time when they made the oral applications for a reopening, the mother's solicitors were not in possession of the evidence from the Crown Court trial. In contrast, they now have a transcript of much of the evidence, including the evidence given by KF.
62. It would not be right for this Court to indicate how the judge should determine a further application to reopen the fact-finding hearing. Like Peter Jackson LJ in Re E, I consider that the further evidence might have an important influence on the outcome but emphasise that the extent of its significance is a matter for the judge. It should be recorded, however, that in the course of the hearing before us, Ms Markham indicated that the local authority would not oppose an application for a rehearing of the findings relating to the serious injuries sustained by J on the night of 30 June and 1 July.”
The reopening application
In his extempore judgment on 19 March 2021, the Judge gave his decision at the outset. He then described the process and the parties' positions (I have removed names where they appear):
“4 … In the course of the judgment of the Court of Appeal, reference was made to the potential for an application to be made to reopen my findings (Court of Appeal decision para 37, 55–62) V120) and this two-day hearing has been to consider that application brought on behalf of the children's mother. The mother's application for reopening runs to 24 pages (A844-A867).
5 Most of the references made in this hearing were to the ‘core bundle’ running to some 2,968...
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