ZZ, AZ, FA, ARA, KA and ASA (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWFC 9 |
| Docket Number | Case No: NJ12C00I06 |
| Court | Family Court |
| Date | 12 June 2014 |
[2014] EWFC 9
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: NJ12C00I06
THE FAMILY COURT
(Appeal from DISTRICT JUDGE AITKEN)
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Diana Murphy (instructed by Arani & Sons) for the appellant (father)
Mr Roger McCarthy QC (instructed by the local authority's Head of Legal Services) for the local authority
Ms Annie Dixon (instructed by T V Edwards) for ZZ and AZ
Ms Shiva Ancliffe (instructed by G T Stewart solicitors and advocates) for FA, ARA, KA and ASA (by their children's guardian)
The mother appeared in person
Hearing date: 12 March 2014
Sir James Munby, President of the Family Division:
This is a father's appeal against a decision of District Judge Aitken sitting in what was, at the time, the Principal Registry of the Family Division. In accordance with the then practice, the appeal was made to, and the hearing before me on 12 March 2014 took place in, the Family Division of the High Court. In accordance with articles 2 and 3(1) of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956, the proceedings have continued on and after 22 April 2014 in the Family Court as if they had been issued in that court. It is accordingly in the Family Court that I now sit to give judgment.
The factual background
The appeal arises out of care proceedings relating to six children: ZZ born in 1997, AZ born in 2000, FA born in 2005, ARA born in 2006, KA born in 2008, and ASA born in 2010. The mother of all six children is ZN. The father of the four younger children is SA. The maternal grandparents are MN and SP. AM and RM are the maternal great uncle and great aunt. SS is a maternal cousin.
The proceedings commenced on 19 July 2012. The local authority's 'threshold' statement asserted that all six children had suffered significant harm. In support of that assertion the local authority relied on nine specific allegations. The first was that SA had assaulted the two elder children, ZZ and AZ: the next three were that SA had assaulted ZZ; the fifth was that ZN had failed to protect ZZ; the other four were that SA had assaulted ZN. The threshold statement concluded with the assertion that, as a consequence, all the children suffered significant emotional harm and were at risk of suffering physical and emotional harm. A fact finding hearing in relation to the nine specific allegations took place before District Judge Aitken over ten days in December 2012. The District Judge handed down a reserved judgment on 14 January 2013. She found all nine allegations proved.
Subsequently, ZN and ZZ purported to retract their complaints about SA. The question of what should be done came before the District Judge on 13 August 2013. SA sought a rehearing of the entire fact finding before a different judge. ZN sought a rehearing of the first four allegations before a different judge. The local authority accepted that certain findings should be discharged. The District Judge refused the applications for a rehearing, discharged certain of her findings, and gave directions for a final hearing on 30 September 2013 with a time estimate of five days. She refused SA's application for permission to appeal.
SA's renewed application for permission to appeal came before Parker J on 25 September 2013. The local authority sought to cross-appeal. Parker J allowed the appeal and cross-appeal and remitted the matter for a further fact finding hearing before the same District Judge. I shall return below to deal with Parker J's reasoning and the precise terms of the order she made. Suffice for the moment to say that she was referred to and sought to apply In re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117, a decision of Hale J (as she then was) which I shall refer to as Re B, and Birmingham City Council v H and others [2005] EWHC 2885 (Fam), a decision of Charles I which I shall refer to as Birmingham (No 1). These two decisions lie at the heart of the controversy on the principal issue that I have to determine.
Following the further fact finding hearing, which in the event lasted eight days, the District Judge gave a further judgment on 9 October 2013. I shall return below to deal with her reasoning, but her conclusion was expressed as follows:
"I do not find the retractions by either ZZ or ZN to be credible … I do not discharge any of the findings made following the fact finding hearing."
She went on to find that threshold was established on the basis that:
"AZ and ZZ have suffered physical and emotional abuse and the younger children … have suffered emotional abuse."
Her ultimate decision, embodied in orders dated 9 October 2013 and 23 October 2013, was that there should be residence orders in respect of the two elder children in favour of MN and SP, a special guardianship order in respect of the youngest child in favour of SS, and special guardianship orders in respect of the other three children in favour of AM and RM.
SA again sought permission to appeal. His application came before Baker J on 15 January 2014. Baker J gave permission to appeal. He also gave permission to amend the grounds of appeal (see below) to raise what he suggested was the real issue in the appeal, whether the approach in Birmingham (No 1) is correct in a case such as this.
Before proceeding any further it will be convenient to consider the case-law.
The case-law
I start with Birmingham (No 1).
Birmingham (No 1) , like Re B before it, was a case where a local authority sought to rely upon findings made in earlier, concluded, proceedings relating to a different child. In Re B the current care proceedings related to two children G and D; the local authority sought to rely upon findings against their father made in earlier care proceedings relating to two other children. In Birmingham (No 1) the current care proceedings related to S; the local authority sought to rely upon findings against her mother by Bracewell J, upheld subsequently by Kirkwood J, in earlier proceedings relating to another of her children, P. In accordance with the order made by Charles J in Birmingham (No 1), the final hearing of the proceedings relating to S took place before McFarlane J (as he then was): Birmingham City Council v H and others [2006] EWHC 3062 (Fam), 95 BMLR 159, which I shall refer to as Birmingham (No 2).
In the present case, of course, the forensic context is quite different. Here, as in Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the issue arises in the context of care proceedings which have not yet concluded. One of the questions I have to consider is whether that forensic difference justifies a different approach.
In Birmingham (No 1) Charles J said this, para 55:
"In my view the approach [of the family court to earlier findings] has three stages. Firstly the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding (here referred to by the parents as a review). If it does the second and third stages relates to its approach to that exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist."
McFarlane J specifically agreed with that analysis in Birmingham (No 2), para 42(ii).
Before proceeding any further with Charles J's analysis it is convenient to return to Re B. In that case Hale J was concerned primarily with the first stage. She identified, pages 128–129, a number of factors to be borne in mind by the court when deciding whether or not to allow any issue of fact to be tried anew. I need not set them all out. For present purposes what is important is this:
"Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence … The court will want to know … whether there is any new evidence or information casting doubt upon the accuracy of the original findings."
In relation to the third stage, a matter which she made clear had not been addressed before her, Hale J said that the trial judge:
"will no doubt wish to consider whether there appears to be some real reason to cast doubt upon the earlier findings."
In Birmingham (No 1) Charles J was not concerned with the first stage for, as he explained, para 57, that had been dealt with at an earlier hearing by Holman J. Nor was he directly concerned with the third stage. As he said, "We are at the second stage." Nonetheless, he went on to consider the third stage. In a crucial passage, paras 62–63, he said this:
"62 At this stage, as well as at the earlier stages, the strong public interest in finality in litigation plays an important part. It supports the conclusion that before earlier findings are set aside, or are not to be treated as binding, a high test has to be passed.
63 At this stage it seems to me that analogies can be drawn from the approach taken by the Court of Appeal:
a) in respect of appeals against a finding of fact where great weight is given to the decision of the judge whenever, in a conflict of testimony, the demeanour and manner in which relevant witnesses gave evidence are material elements (see for example the notes to RSC Order 59), and
b) the approach of the Court of Appeal in the recent cases of [ In re U (A Child)...
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