A (No. 2) (Children: Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Newey,Lord Justice Underhill |
| Judgment Date | 14 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1947 |
| Docket Number | Case No: B4/2019/1417 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2019 |
[2019] EWCA Civ 1947
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
Mr Justice Hayden
ZC16C00911
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Vice-President of the Court of Appeal (Civil Division)
Lord Justice Peter Jackson
and
Lord Justice Newey
Case No: B4/2019/1417
Alison Ball QC & Gemma Kelly (instructed by Freemans Solicitors) for the Appellant
Mother Andrew Bagchi QC & Rebekah Wilson (instructed by Imran Khan and Co Solicitors) for the Appellant Father
Nick Goodwin QC & Tim Parker for the Respondent Local Authority
John Tughan QC & Rebecca Foulkes (instructed by Harris Temperley) for the Respondent
E Mark Twomey QC & Sarah Tyler (instructed by Miles and Partners) for the Respondent
W Giles Bain & Laura Harrington (instructed by Steel and Shamash Solicitors on behalf of the Children's Guardian) for the Respondents
X, Y and Z by written submissions only
Hearing dates: 9–10 October 2019
Approved Judgment
Summary
Three years ago, on a Sunday morning in November 2016, S, a 10-year-old girl, was found dead in her bedroom. Also in the home were her parents and her five siblings, including two older brothers. S died of strangulation and had suffered recent injuries to her genital area. The police investigation was deficient. No criminal charges have been brought. An inquest was opened and adjourned.
The local authority issued care proceedings to protect the siblings. It alleged that S had been sexually assaulted and killed but that it was not possible to say who among the parents and older brothers might be responsible. The family deny this. Its position has been that S's injuries and death must have been the result of an accident in which she fell from her bunk bed, entangled in some netting. It has also raised the possibility that S had been attacked by an intruder.
There have been two trials. In December 2017, Francis J found that the local authority had not proved its case and he dismissed the proceedings. The local authority appealed and the decision was overturned by this court in July 2018. The retrial came before Hayden J in early 2019. In a judgment given in June 2019, he found that S's mother had caused the genital injuries in the course of an attempt at female genital mutilation (FGM) that took place outside the home and that she had then strangled S in her bedroom after their return. The father, but not the brothers, had colluded to hide what had happened. The parents, supported by the brothers, now appeal.
Having heard the arguments, I am in no doubt that the appeal must succeed on the grounds that the decision was both wrong and procedurally unjust. The FGM finding was conjectural and unsupported by any real evidence. It had not been alleged, or even investigated, and therefore took the parties by surprise. It must be set aside, and as it is the foundation for the identification of the mother as having killed her daughter, that finding cannot stand either.
In these dire circumstances, the local authority invites us to substitute our own findings. I would decline that invitation. It would only be a proper course if there was just one realistic outcome and that is not the case here. As to whether a second retrial must be ordered, the family, supported by the Guardian, pleads that it need not and that the proceedings should now come to an end. With a heavy heart, I cannot agree. The circumstances are too serious, and a further hearing may yet provide an outcome that is of value one way or another to the surviving children. I would therefore remit the local authority's application to the family court for a retrial preceded by an early case management hearing in accordance with arrangements that have been made with the President of the Family Division.
The background
The proceedings concern five children – E (a boy who was 15 when S died), W (a boy then aged 13), X (a girl then aged 6), Y (a boy then aged 3) and Z (a boy then aged 6 weeks).
The parents were born in an overseas country where FGM is prevalent (‘OC’) and came to the UK as children. They married in 2000. There had been no previous concerns about the children, who appeared to be thriving. S's attendance and behaviour at school was, like that of her siblings, excellent. The entire proceedings revolve around the tragic events of a single weekend in November 2016.
At about 4 pm on the Saturday, while the father was at work, the mother and the children (except E, who was going to a party) drove to the home of the father's female cousin N, to whom the mother is close. N's five children, aged between 15 and 4, were there. Another 15 year-old girl was also present. The children played. S and the eldest cousin, a girl, went to the shops to pick up some food. Later in the evening, everyone had a full meal and at some point N's husband returned home. S is described as having been in high sprits throughout.
The mother and children left N's house at about 10 pm and went to the home of the father's aunt O, but she was not there. They returned to the family home, where they found E, who had come back from his party. The father returned from work shortly afterwards so that by 10.30 pm all eight family members were in. S, X and Y then went to bed in their second floor bedroom. The mother retired to her first floor bedroom with Z. The father and the older boys stayed downstairs watching television. E went to bed around 11.30 pm and the father and W followed at 12.30 to 1 am. At the time, shortly after the birth of Z, the father was sleeping in the other second floor bedroom with E and W. The mother was awake for much of the night with Z and she was frequently on the telephone to aunt O and others. Her final conversation with O lasted from 1.33 am to 2.23 am.
On the morning of the Sunday, S was found dead in her bedroom. She had occupied an upper bunk and X and Y the lower bunk. She was reported to have been found by W (then 13) with a length of decorative netting that had adorned her upper bunk bed, wrapped around her neck. Her father reported that he had removed her from the netting, but she was already dead. Her mother dialled 999 at 10.13 am and the police and ambulance service attended swiftly. During the course of the day, the police considered whether there might have been foul play, but came to the view that it had been a tragic accident in which S had been entangled in, and strangled by, the netting. No attempt was made in subsequent days to carry out a reconstruction and much potentially valuable information was lost.
The only account of an event in the night was one given by X (6), who was spoken to by police officers in the mother's presence. She said that she had heard a thud or thump and found that S had fallen out of bed in the night but that she hadn't told anyone because she was worried she would get told off for waking her parents up. The mother asked why she did not tell someone, and X replied that she had shouted, but no one came. X did not repeat this account under later questioning.
On the following Thursday, a post-mortem was carried out by the Home Office forensic pathologist Dr Cary and the paediatric pathologist Dr Marnerides. They found a mark around S's neck that was in their view indicative of ligature strangulation. They also found injury to the external and internal genitalia and the anorectal region. Their opinion was that S's death had not been an accident but a sexually-motivated homicide.
The day after the post-mortem, the father was arrested and questioned but released without charge. The local authority took proceedings leading to interim care orders. E and W moved to other family members, X and Y were placed in foster care, and Z remained with his mother.
On 6 December HM Coroner opened and suspended an inquest into S's death. The inquest has not yet been resumed.
On 13 December W was arrested at school and bailed after questioning.
On 16 December the court approved the return of X and Y to their mother under interim supervision orders. The mother and the three younger children thereafter lived with a maternal aunt, across the road from the family home.
On 9 March 2017 the court approved E and W returning to the family home under the care of their paternal grandfather.
On 7 June 2017 a decision was made that there would be no further police action in relation to the father or W.
In the family proceedings, expert medical evidence was obtained from, amongst others, Dr Cary and Dr Marnerides, Dr Leadbeatter (forensic pathologist) and Dr Lipetz (gynaecologist). There was agreement between them that death had probably occurred between about 11 pm and 2 am and was caused by pressure on the neck from a ligature, Dr Cary considering that it was more likely to have been caused by pulling than hanging. The most likely explanation was a deliberate act by a third party. Suicide or accident were possible but less likely. As to the genitalia, there was acute traumatic injury, likely to have occurred within 12 to 14 hours of death and to have been caused by digital penetration, though other forms of penetration could not be discounted. In the absence of a reconstruction showing how the genital injuries might have been caused by S falling onto an object (referred to as a straddling injury), Dr Lipetz considered this explanation unlikely. There was no unanimity about the presence of injury to the anorectal region and the local authority did not pursue a finding in that respect.
In October 2017 an experts meeting between the four experts took place. There was a substantial measure of agreement. With some degrees of nuance, their common opinion was that (1) an accident was less likely than a deliberate act by S or a third party, (2)...
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