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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (No. 2) (Children: Findings of Fact)  EWCA Civ 1947 (14 November 2019)
Cite as:  EWCA Civ 1947
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ON APPEAL FROM THE HIGH COURT FAMILY DIVISION
Mr Justice Hayden
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE PETER JACKSON
LORD JUSTICE NEWEY
| A (No. 2) (Children: Findings of Fact)
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
Crown Copyright ©
Lord Justice Peter Jackson:
(1) The neck injuries and deaths were caused by ligature strangulation.
(2) The genital injuries were caused by blunt force trauma which included an element of penetration either digitally or by an object.
(3) The genital injuries were caused at the same time as or within a few hours of death, and in any event following S's return home at about 10.00 pm on Saturday.
(4) All the injuries were inflicted by the mother and/or the father and/or E and/or W.
(5) One or more of those four individuals must have been aware of the manner of S's death.
(6) One or more of the four had conspired to cover up what happened in order to protect the perpetrator and had dissuaded the younger children from talking.
"MR GOODWIN: Have you ever considered that S, in the past, should have been circumcised?
A No. My mum did that to me and I know how pain and terrible it is, so I would never wish for my child to go through what I go through.
Q Your mum did that to you?
Q Has circumcision ever been discussed with any of the children?
A No. The boys do it but we don't do the girls.
MR JUSTICE HAYDEN: Why is it right for the boys and not for the girls?
A Because I think ever - most of the country, they do the boys. In our country and some other parts of Africa, they do the girls as well.
A But they --
Q You do not think it is right for the girls?
A No. It's horrible, especially There's two ways to do it. The one I done it is horrible.
Q I understand all about it and I agree it is an abomination, but boys have no say in their circumcisions either, so why is that right?
A It is a Sunnah from prophet [indecipherable] Saleh and boys must have, but there is no way in the Quran girls should have it. It's just the culture.
Q It is because of the Quran.
A Yes because of the culture just go through and women been through that (inaudible) but the man must have. Every Muslim man.
MR GOODWIN: But there is an incredibly high rate of FGM (female genital mutilation) in [OC]?
MR JUSTICE HAYDEN: I think that might be a distraction in this case.
MR GOODWIN: Right, my Lord. I will not pursue that. (To the witness) Nothing that we should attach to [Y]'s comment to the foster carer about "how can a girl be circumcised if she doesn't have a penis"?
A I think Joe [the social worker] tell me and talked to me about it, [Y], so [Z], when he was circumcised, he had a little (inaudible) when he was cutting Y and Y, his friend (?) was not long ago, was still there. So he talked to the foster man
MR JUSTICE HAYDEN: How old was he ? What age?
Q What age are the boys circumcised?
A Back home they do 7, 8, but in here we do it as soon as we can. For example, after [Z] --
Q As babies?
A I done [Z] under the month.
Q In a month?
A Under the month, yes. I done after one year and-half. So, it depends how you just do it.
Q I understand."
This exchange occupied little more than one page of the thousand pages of the trial transcript. The reference is to the mother having taken Z to be circumcised by a GP at the age of about four weeks, so in early November 2016.
"MR GOODWIN: Yes. Well, because, as things stand, my Lord, we are where we are, in terms of the evidence.
MR JUSTICE HAYDEN: Yes. I mean, that is the difficulty when there is a running assumption that a genital injury is sexually motivated, and the judge only really gets a chance to evaluate all the options when he's got to the end of the evidence and, particularly in this case, [E]'s evidence.
MR GOODWIN: Your lordship has far more extensive experience of FGM-type cases than I do, I certainly accept that, but I am struggling at the moment to understand what the link would be in terms of the pathology and the type of injury and the FGM thesis. There is no evidence that there was any cutting going along, going on. There is no other evidence of FGM, either picked up from the text messages sent by the family or from any other relatives. So I try to be cautious not to speculate about the significance that that episode might have.
MR JUSTICE HAYDEN: Tell me about the day, what you say about the day before [S] died, the mother and the children travelled, travelling some journeys that day."
"MR JUSTICE HAYDEN: And that says what, exactly, because he's talking about girls being circumcised and it is confusing him?
MR GOODWIN: That is correct. I mean, he is asking, if a girl does not have a willy-- how can they be circumcised? So query whether he has heard something about that query whether he is asking himself
MR JUSTICE HAYDEN: I draw the inference, to use your phrase, that he is troubled about female genital mutilation it is on his mind for some reason.
MR GOODWIN: Well, I suppose the difficulty, my Lord, is whether or not it is on his mind for some reason because the question mark has been generated by something he has heard from a parent or whether it is something internal.
MR JUSTICE HAYDEN: Very common, FGM, in [OC], you say?
MR GOODWIN: Well, a UNICEF report does say there is a prevalence in this age group of 95 per cent.
MR JUSTICE HAYDEN: Yes, 95/98 per cent.
MR GOODWIN: I do not want to introduce any controversial expert evidence on that front.
MR JUSTICE HAYDEN: Well let us -- We will see how we deal with the overall picture in due course."
"MR JUSTICE HAYDEN: I do not want you to go without addressing the point that I, as I am fully prepared to accept, did not encourage any further pursuit of the FGM issue in cross-examination and returned to it only after the whole of the evidence. Now, if you want to make that good and you say it is in anyway significant, I struggle to see how it is likely to go beyond a screaming disavowal, which you have already got, but if you think it needs to be pursued further than I really need to know that.
MR GOODWIN: I do not invite the court to reopen the evidence, if that is what your Lordship is alluding to."
"MS BALL: are the local authority really suggesting that it is a real possibility that this woman, this loving, responsible, according to all accounts, woman went upstairs, with or without the baby, and strangled or hanged that daughter, and raped her or sexually interfered with her?
MR JUSTICE HAYDEN: Not necessarily rape or sexual.
MS BALL: Well, my Lord, what is it then? Are we going down --
MR JUSTICE HAYDEN: I do not know.
MS BALL: -- the line of FGM, because -- if we are, then I think more evidence is going to be needed.
MR JUSTICE HAYDEN: -- You will have to tell me what evidence you think is going to be needed rather than just a generalised assertion.
MS BALL: Well, medical evidence
MR JUSTICE HAYDEN: Nobody has suggested that she has been cut.
MS BALL: Well, my Lord, it has not been put to my client --
MR JUSTICE HAYDEN: And I consider -- the entire wide canvas -- it has, she has been asked about FGM
MS BALL: She has, but it had never been suggested that she has in some way interfered with her daughter or allowed somebody else to interfere with her daughter in that way, leading up to, for example, FGM
MR JUSTICE HAYDEN: It has not been developed, I agree -- as a theory.
MS BALL: but none of us have even addressed it We have not asked the doctors about it. I find it surprising that my Lord
MR JUSTICE HAYDEN: Well it is surprising in so long it has not been addressed, but it emerges from the evidence as it has unfolded in what is always particularly in this case, a dynamic process.
MS BALL: Well, my Lord, the local authority did not appear to be going down that line. I mean I'm not saying that in any way prevents you from going down that line, but they were not, they have not developed it. They have not cross-examined anybody in this case to suggest that they were actually party to some preliminary, for example, activity which may have led to that, and that is wrong. That is quite wrong that they have not had the opportunity to say "No of course we didn't. No we don't agree with it."
MR JUSTICE HAYDEN: Well they have said that, have they not?
MS BALL: But it was never suggested that they, that they had done this to their daughter.
MR JUSTICE HAYDEN: Well, what more can they say other than disavow it
MS BALL: Well, my Lord, if that is truly a line you are going down then I must
MR JUSTICE HAYDEN: Well, I can assure you, Ms Ball, it is.
MS BALL: Well my Lord then I think I do need to call my client for you to hear what she says.
MR JUSTICE HAYDEN: Well, I think you should I am not going to stop you at all if you -- I signalled that it was part of the range of possibilities that I had to consider, and I consider that the genital injuries may not be sexually motivated.
MS BALL: No, we say they are not
MR JUSTICE HAYDEN: So if it is not sexual, what is it
MS BALL: It is an accident, my Lord
MR JUSTICE HAYDEN: Well, that is your theory."
"MR JUSTICE HAYDEN: What are the range of options?
MR BAGCHI: Accident.
MR JUSTICE HAYDEN: There is accident. The evidence in relation to that is tissue thin. What are the other options? I do not believe in having sat through the entirety of the evidence and read all the papers, to keep you, sit here like an open fridge until you get the judgment, I like to tell you where my money is going so that you can exchange with it. That is a process that I think is essentially fair."
(1) The mother made a five-page statement describing her own experience of FGM and opposition to it in relation to her own children. One of her brothers has returned to OC. None of his four daughters has been subjected to FGM.
(2) Aunt O made a statement describing her own experience of and opposition to FGM. Neither of her daughters, aged 26 and 13, has been subjected to FGM.
(3) Cousin N, who had not previously made a statement in the family proceedings, filed a statement describing her experience of and opposition to FGM. None of her three daughters, aged 18, 13 and 7, has been subjected to FGM. The statement ended with two paragraphs describing the events of the Saturday and S's normal, happy demeanour that day.
(4) N's 18-year old daughter (the cousin who had accompanied S on the visit to the shops) filed a confirmatory statement.
(5) The mother's older sister filed a statement describing her own experience of and opposition to FGM. Her daughter, aged 10, has not been subjected to FGM.
(6) The mother's younger brother, a social worker who the judge described as having a very dominant role in the household, gave his opinion that the UK OC community is very much against FGM and that he himself had taken part in anti-FGM workshops. None of his four daughters has been subjected to FGM.
(7) The father filed a short statement confirming the contents of all these statements.
"(1) To what extent were the genital injuries consistent with (a) an attempt at FGM or (b) an act preparatory to FGM or (c) a coercive genital examination preparatory to FGM?
(2) Do you have experience of examining children where there has been suspected FGM?"
Her replies were:
"(1) I am not able to answer as I have no experience of preparation of FGM or the act of cutting other than having heard women's accounts of their experiences and two cutters' accounts of their techniques. The concept of a preparatory examination prior to cutting is not something I have heard of from women who have been cut.
(2) No: I have reviewed examinations (digital images, still and video) of prepubertal children at peer review to confirm they have normal genitalia and have not had any that have had FGM. The youngest child I have seen with suspected FGM was 12, post pubertal and had normal anatomy.
Over the last 23 years I have examined many women who have been cut, all post pubertal. This has been in general gynaecology, contraception and obstetric settings (delivering babies). The women who have been cut have been from the Yemen, Sudan, Somalia, Eritrea, Liberia, Sierra Leone and Tanzania."
" Q Did [S]'s death have anything to do with FGM?
A Not at all, hundred percent no."
"MR GOODWIN: The evidence she gave and the evidence your lordship has on paper, that none of the children of this extended family have been cut. There is no contrary evidence in relation to that.
MR JUSTICE HAYDEN: There is no evidence other than assertion, is there?
MR GOODWIN: My Lord, that is right. We do not consider that there is sufficient an evidential basis to conclude that the context for S's injuries and death is related to FGM. In our submission there is insufficient evidence to make solid conclusions about the likely motivation.
MR JUSTICE HAYDEN: Are you actually arguing against this, or are you saying it is not the way the local authority puts its case? It can see that there are features of the evidence which leads in that direction, but it does [not] feel confident ultimately that is going to advance that case.
MR GOODWIN: It is the latter.
MR JUSTICE HAYDEN: And ultimately of course it is a matter for the judge.
MR GOODWIN: Of course, my Lord. But we are mindful there is no expert evidence in support of the FGM thesis.
MR JUSTICE HAYDEN: It is not a question of what evidence there is not. It is a question of what evidence there is and whether it is not enough.
MR GOODWIN: But we note of course that there is no evidence that FGM was practised on S, and insofar as the injuries that we see are indicative of examination, of preparatory steps prior to FGM that is a possibility. It has been argued it is no more than a possibility and therefore ultimately does not assist the local authority in defining the motivation behind what happened to her.
MR JUSTICE HAYDEN: Very well.
MR GOODWIN: So, my Lord, that is our position."
(1) The neck injury:" the pathologists considered that the preponderant evidence, tempered by appropriate caution, was that the injury to the neck was in consequence of third-party ligature strangulation."
(2) The genital injuries:" 'blunt trauma and penetration or attempted penetration by an object, finger or a penis' represented the reasoned consensus."The judge observed that the presence of trauma did not necessarily equate with sexual assault.
(3) Timing: the genital injuries occurred no more than 12-24 hours before death [in parenthesis, the figure of 72 hours mentioned by the judge in closing submissions had at one stage been mentioned by Dr Lipetz]. Death probably occurred in the early hours of the morning.
"73. Fact finding hearings have an investigative, dynamic complexion to them. The consequences of adverse findings against parents or carers may be profound and life changing. It is for these reasons judges frequently permit great latitude in the presentation of these difficult cases. That does not extend to the unarguable. Even in this investigative, non-adversarial, sui generis jurisdiction there must be parameters."
"83. I have tried to envisage how a penetrative injury could have occurred by the mechanism Ms Ball suggests. I have been unable to do so. It strikes me, largely as a matter of common sense, that this is highly improbable. I do not find it difficult to see why Dr Lipetz discounts penetration in straddle injuries so unequivocally and it seems equally as unlikely in the mechanism contemplated here.
84. I note also that there were no relevant injuries other than in the genital region.
"86. Here however, the individual medical opinions have been scrupulously tested, in the way that I have sought to demonstrate above, by reference to a wide panoply of other professional opinion and expertise. The experts involved have, without exception, displayed an eagerness to engage open-mindedly in enquiry by highly experienced counsel, over a wide range of possible hypotheses. Their reasoning has been, in my assessment, entirely free from dogma, nor has it been characterised by any defence of amour propre. I have, ultimately, for all the reasons set out in my summary above, come to the clear conclusion that S died in consequence of strangulation inflicted by another person. In addition, I am, with very little difficulty, satisfied that the medical evidence establishes that the genital injuries were sustained in consequence of blunt trauma and penetration, caused by an object, finger or a penis.
87. Having determined, by separate analysis, that both the strangulation and the genital injuries were inflicted by trauma caused by another person, I permit myself, at this stage and I emphasise only at this stage, to conclude that my findings in respect of each serve to reinforce the other."
"Whilst I am entirely satisfied that there has been both internal and external blunt trauma genital injury, I can find no evidence, at all, that this was a sexual assault. Accordingly, I also find no evidence that the subsequent strangulation was sexually motivated."
"107. According to M she and the younger children stayed at N's until quite late. I was told that a lot of food had been prepared and that the day was full of laughter and joking. In contrast to the detailed evidence I have recounted above I have found the account of that afternoon to be vague, generalised and ultimately unconvincing.
108. In the light of my findings, both in relation to the family's accounts and the medical evidence, it is likely that the genital injuries occurred during the late afternoon. Mr Twomey [for W] has explored the possibility that S may have been sexually assaulted during the 40 minutes that she left the house with her cousin to buy Shawarma, a type of bread. Nobody has suggested that S was distressed on her return or made any complaint at any stage. I discount it as entirely improbable that S was sexually assaulted on her visit to the shop."
"112. What is significant about this is that the mother was awake for most of the night in this modern, modestly sized house when her daughter was, as I have found, strangled to death. It is equally clear that M had been with S the entire day, excluding the short visit to the shop."
"126. The force of all this impresses the Local Authority as sincere. I have no doubt that aspects of it are true. This said, truth and verisimilitude are, self-evidently, conceptually different."
"Her rationalization of the practice, in this context, as an article of faith, troubled me and served, in my assessment, to weaken her articulate disavowal of FGM."
"Identifying a perpetrator is particularly challenging here because, first, there is no firm evidence about the motive for the killing and, second, there is no clarity about whether the person responsible for her sexual assault also killed her. Was she sexually assaulted by one of her brothers then killed by her parents to avoid bringing shame on the family? Was she sexually assaulted then either deliberately killed by the same person or accidentally killed during an act of ligature restraint? We do not know the answers to these questions and would be speculating if we sought to base a decision on perpetration on either hypothesis."
"142. I have taken care to emphasise the many positives in this family. This is an important feature of the broader canvas of the evidence and I have it in mind when I consider the hypothesis that S may, in this essentially loving household, have been a victim of a sexual assault by one family number and killed by another. It is inherently improbable. The speculation that the killing might be motivated by the 'shame' of the sexual assault has absolutely no root at all in the evidence."
"144. From my summary of the oral evidence from the documents the following key features required to be identified:
i) S was in M's care throughout the 24 hours prior to her death;
ii) On her own account M was asleep for, at most, 1½ hours in this period;
iii) Excluding the physical evidence of strangulation, there were no other relevant injuries identified to S, beyond those to the genital area as described;
iv) There is no extrinsic evidence suggesting that a sexually motivated assault took place in the night in S's bedroom where two other siblings were sleeping. Nobody reports any noise or disturbance, notwithstanding their close proximity and, of course, the fact that M was awake for most of the night. What is postulated therefore is an apparently silent and brutal sexual assault (having regard to the extent of the genital injuries) followed by strangulation. On this factual matrix the explanation is simply not credible;
v) There is no physical evidence of a struggle within the bedroom, generally and none, particularly, relating to S's body or clothing;
vi) Notwithstanding that this was the first time M had been out of the house, at least socially, since the birth of the baby, who was a poor sleeper, she was out until very late in the evening;
vii) M admits that she lied to F about her visit to O. For the reasons stated above I reject her rationalisation of this lie.
145. It follows from this that the genital injuries were unlikely to have been inflicted after S returned home but, as the forensic evidence establishes, they would have been sustained during that day. There is, accordingly, no realistic opportunity for S to have sustained the genital injuries at a time when she was not in M's care. "
"147. On any view that there was a period of 40 minutes unaccounted for between F getting up and the telephone call to the emergency services."
He also considered that there was an apparent lack of curiosity on the part of the family about how S might have died.
"150. Having come to the clear view that the genital injuries were inflicted during the day and having entirely discounted a stranger assault occurring during the short visit to the shops, I must logically conclude that they were sustained whilst S was in M's care and/or in the company of the other women who attended N's home that day. Whilst I must not discount, entirely, the possibility of a sexually motivated assault in these circumstances, I consider it to be highly unlikely."
"153. I find M's account of her voluble conversation with O between 1.33 am to 2.33 am [sic] as a 'normal' event to be unlikely. She had not been able to speak with O as she had hoped earlier in the evening and had lied about her unsuccessful visit to her husband. I have been told that an older generation is more likely to continue the practice of FGM and I note that O falls into this category of respected older woman.
154. Having accepted the evidence of F and E to the degree that I have, I consider both were likely to have been asleep when S was killed. I do not consider that, on a proper construction, there is any evidence to suggest that there is a real likelihood or a real possibility that W could have been responsible for his sister's injuries and subsequent death. Though both the Local Authority and the Guardian contend that he should remain in the pool of perpetrators, I cannot identify any evidential basis upon which they invite me to do so. Thus, the only person in the household likely to have been awake when S was killed was her mother. Drawing all the above strands of evidence together I consider that it was she who, on the balance of probabilities, caused the genital injuries earlier in the day and strangled S during the night.
155. Mr Goodwin describes M's evidence variously as 'disingenuous', 'not to be trusted as truthful' and to be treated with 'great caution'. Nonetheless, I am told the Local Authority evaluate her denouncement of the practice of FGM as convincing. I am not prepared to make this exception to my assessment of her damaged credibility. Whilst her criticism of FGM was articulate, I was not persuaded of its authenticity. Following the discovery of S's body M told me she was too distressed and weak to go upstairs to see her daughter for herself. Certainly, when the police and paramedics were present she made no attempt to do so. She told me that she accepted what F had seen. I consider that she had no need to go upstairs to find out what had happened - she already knew.
156. I reiterate, every single adult female member of this family has been subjected to the abhorrent practice of FGM. I note that E described his family as being towards the 'traditional' end of the cultural spectrum. Despite M's denial, I consider that the genital injuries are more likely to be in consequence of some failed attempt at FGM. By this I mean, the genital injuries were sustained in a manner which was not sexually motivated. It was either an intimate investigation by way of preparation or, more likely, an actual attempt at FGM, which S was successfully able to resist. I consider the latter to be more likely because this assault is, for all the reasons I have set out, intrinsically linked to the strangulation that followed. I am not prepared to speculate about the actual circumstances. S made no complaint of what were quite significant genital injuries. Nor, I am told, did she exhibit any distress at home later that evening. Had it been a sexual assault. I am convinced she would have done."
157. I am not prepared to draw any inferences as to what M was speaking to O about during her lengthy telephone call. On the forensic evidence, S's death is likely to have occurred at some point after the conclusion of that conversation. The two may or may not be linked. Neither am I prepared to draw conclusions as to why M caused her daughter's death. What is evident is that M had not been sleeping properly since her baby was born, a period of some 6 weeks. She may not have been thinking clearly. It may be that she was angry with S or that she felt her family had been dishonoured by S in some way. What is clear, is that from the discovery of S's body this family has closed itself off to any investigation and has been determined that the full facts should not come to light. The collusion of silence is between the parents, the children are, to differing degrees, caught up in it."
(1) The injuries to S's genitalia and neck were deliberately inflicted;
(2) The genital injuries were caused by some act preparatory to or due to a failed attempt at female genital mutilation;
(3) The neck injuries caused S's death.
(4) The perpetrator of S's injuries was her mother.
(5) The mother and father colluded to hide the cause and the perpetrator of S's injuries.
(6) No findings were made against either E or W and in particular no findings that they had inflicted or colluded in the infliction of S's injuries, or colluded to hide the cause or the perpetrator.
Most of the argument on this appeal has centred on the second of these findings and its impact upon the first and fourth findings.
The grounds of appeal
(1) The judge was wrong to find that the genital injuries had been caused in connection with FGM, and not at the same time as the neck injuries.
(2) The finding about the genital injuries being caused at N's home was unfair to the mother, who had not been put on notice of the possibility of such a finding. It was also unfair to N and to any others who were present, as they had not been given an opportunity to be heard.
(3) The judge was wrong to find that S had been strangled by another person, or that the mother was responsible.
(4) Inadequate consideration was given to the possibility that all the injuries were caused by accident.
(5) The judge was wrong to find that the parents had colluded to prevent the circumstances of S's death coming to light.
(6) He failed to take into account significant evidence undermining each of his conclusions.
(7) Alternatively, he should have found that the evidence was insufficient to discharge the burden of proof.
The submissions of the family
(1) It was an extraordinary finding that had not been sought by the local authority, even after the judge showed an interest in FGM. It could only have arisen from an erroneous assessment of the evidence and/or an unfair process.
(2) There was no supportive medical evidence:
- S had not been subjected to FGM.
- There was no medical or other evidence that her injuries might be the result of a preparatory act or a failed attempt.
- The injuries bore no distinctive stamp of an attempt at FGM (see Dr Cary's view).
- There were no accompanying injuries of the kind that might have been caused by a struggle.
(3) There was a lack of appropriate expert evidence:
- The judge only allowed a further question to be asked of Dr Lipetz, who was not qualified to advise on whether these injuries might be associated with attempted FGM or whether there is a practice of making preparatory examinations.
- The judge refused to permit an expert on FGM to be instructed to advise on whether such a practice exists.
- There is no literature describing it.
- The other experts were not asked about the judge's theory.
(4) The judge did not show his hand. If he was thinking that an assault may have occurred at N's home, he should have been explicit about that so that the parties could address it. It had never occurred to the parties that this finding would be made.
(5) As it was, the evidence was incomplete:
- The police had not investigated events at N's home.
- Because FGM was not pursued by any party and arose at a late stage, questions were not asked of earlier witnesses.
- The focus of the additional statements was almost entirely on FGM generally, and not on the events at N's home.
- It was never even put to the mother that she had caused or allowed S to be injured at N's home.
- Nor was it put to N.
- There were a number of older children at N's home that day, who would have been well-placed to know whether S had been assaulted or not but, because it was only in the judgment that it was suggested that an event had taken place there, they were not asked.
(6) In particular, the judge did not consider that his finding meant that W (then 13), whose evidence about his movements was accepted, was present throughout the time that he found S to have suffered the genital injuries. W had made a statement containing a paragraph that described the normal events of the day. He would have been a critical witness in relation to any FGM event that might have occurred at N's home, but he was never asked.
(7) The judge ignored reliable accounts of S's demeanour throughout the day.
(8) Reasons relied upon by the judge to discount a sexual assault during the day apply equally to an FGM-type event. No pain or distress was recorded from what would have been an intensely painful experience. (Dr Lipetz advised that an intimate examination of a child of this age is so painful that it is conducted under anaesthetic.) Yet S ate a normal meal and was described as being happy and lively, both at N's home and on return to the family home.
(9) The judge had no proper basis for saying that the mother's views of male circumcision, as being based on religious obligation, weakened her disavowal of FGM.
(10) The judge cherry-picked the evidence about the family history:
- While he gave significant weight to the fact that all adult females had been subjected to FGM, he ignored the unchallenged evidence that
- This had happened to them at between 3 and 7 years of age.
- None of the twenty female children of the adult family members had been subject to FGM.
- All witnesses expressed abhorrence of the practice, and the mother's brother had campaigned against it.
- None of the female witnesses has any criminal record or propensity to act unlawfully: FGM has been a criminal offence since 2003.
- No professional had ever expressed relevant concerns about the children's safety and the evidence was replete with positive statements about the parents and children.
- There was no basis for the judge to consider that the interaction between the mother and O was sinister or that a phone call in the night (which the mother had described before her phone was examined) was abnormal when he had evidence from both women showing that it was not.
(11) When further evidence was given on 20 March by the parents and the mother's brother, it was not substantially challenged and it was never suggested to either of them that anything had happened at N's home.
(12) Excessive weight was given to Y's comments in foster care, which did not even amount to an account of a factual event. No reference was made to the fact that Z had just been circumcised, which was plainly a possible explanation. It was not "a bold submission".
(13) In reaching the conclusion that the parents wished to stop Y 'opening up' the judge ignored the evidence that they had argued for X and Y to receive immediate therapy and that nothing similar was said in therapy when it was eventually arranged.
(14) Excessive weight was given to the mother concealing the attempted visit to O from the father, and the judge did not give himself a Lucas direction about it.
(15) The judge gave no proper reason for finding at  and  that the genital injuries had been inflicted 'in the late afternoon' or 'during the day', indeed there was no proper basis for this conclusion.
(16) The judge said that the genital injuries and the cause of death were intrinsically linked, but he did not justify this. His assertion that the mother may not have been thinking clearly or that she was angry with S or felt she had dishonoured the family in some way was not evidence-based. In fact the evidence showed that S was a much-loved child and the circumstances in the home overnight and of the discovery of the body make the judge's conclusion highly improbable. Nor had the link between FGM and the death been explored during the evidence.
(1) The finding is unsatisfactory as it is not clear who has inflicted the injuries: is it the mother, or others, or the mother and others?
(2) Insofar as the finding is against the mother, the judge's rejection of her account of the events of the afternoon as vague and unconvincing was unfair as no one was aware that it was a relevant area of investigation.
(3) The court had unchallenged statements from N and from her 15-year-old daughter, who would have been likely to have been present at any FGM event.
(4) The findings could have repercussions for N or any other adults present. They were not on notice and the process was obviously unfair to them within the terms of Re W (below).
(5) There is an inconsistency between the finding in the order at B(iv) and the judgment at .
(6) Despite the judge's attempt at clarification at , his finding is not amenable to clarification because it is unsustainably uncertain.
(1) The finding was an extraordinary and extreme finding made in a cursory manner, seemingly based on the mother having been awake and having taken part in an FGM event.
(2) It was made without the judge giving due consideration to:
- The nature of the relationship between the mother and S.
- The lack of any credible motive.
- The inherent implausibility of her doing such a thing.
- The improbability of her doing so undetected.
- The position and the state of rigor mortis in which S was found.
- The absence of any sign of struggle on the body or in the room.
- The absence of the mother's DNA on the netting.
- The account given by X of having heard a thump in the night.
(3) It was bolstered by an interpretation of the mother not having gone upstairs, which did not take account of her profound shock and distress, evident in the 999 call.
(4) It was based on impermissible exclusionary reasoning: not father or boys (though not explained in the case of W).
(5) The suggestion that the mother was feeling tired, angry or dishonoured was never put to her on any of the occasions when she gave evidence.
(6) The finding is so egregiously flawed as to cast doubt on the judge's rejection of the possibility of accidental causation.
(1) Having discounted a sexual motivation, the judge gave scant attention to the unifying explanation of an accident. It was not incumbent on the parents to prove it.
(2) However, there were a number of indicators that it was a real possibility. It was physically plausible and may explain the sound heard by X in the night. It had not been ruled out by the expert evidence, indeed six doctors had been prepared to accept it as a possibility. However, the judge did not engage with it.
(3) The judge ignored factors that pointed towards an accidental explanation for S's death: the lack of any cries or other sounds despite the presence of two children in the same bunk and three people next door; the lack of any marks of restraint when S was described as a lively child.
(1) The judge was wrong to find that there had been a 40 minute gap between the discovery of the body and the emergency call. The timing was based on when E turned on his phone at 9.17 and the mother's 999 call at 10.13. E, whose evidence the judge generally accepted, gave evidence that he may have woken, turned on his phone and gone back to sleep. He strongly denied that there had been a 40 minute delay before the police were called.
(2) The judge paid insufficient account to the extent of the family's distress when finding their accounts of the morning's events inconsistent. Nor did he explain how any inconsistencies indicated collusion. He paid no account to innocent alternative possibilities for discrepancies, as discussed in Lancashire County Council v C, M and F  EWFC 3 at .
(3) He overlooked a very large number of significant matters pointing away from collusion or silencing of the children. These include:
- The acute improbability of the mother showing such distress during the 999 call if she had known for some hours that S had been dead.
- The assessment of the family by the police officers and ambulance personnel that the family was being open with them.
- The mother's immediate confidence that S had not taken her own life (which, if she was guilty, deprived her of a defence).
- The parents' willingness for the children to have therapy.
- The mother's account of questioning the boys about what had happened, even though it upset them.
- The mother's long-term co-operation with the police throughout a most distressing time for the family.
- The positive impression formed of the mother by the police liaison officer and the Children's Guardian.
- The local authority's general view of the mother as reflected in its willingness to use her as a protective carer for 2½ years, in contrast with its submissions about her in court.
- The fact that the police had never treated the mother as a suspect.
(4) It is not possible to see how the judge could find that only the parents had colluded but the brothers had not.
The submissions of the local authority
(1) Overall, the findings were sound and integrated. The finding that the injuries were inflicted was based on solid expert evidence.
(2) There was nothing medically implausible about the genital injuries being inflicted on a separate occasion to the neck injuries. The medical evidence of a likelihood of strangulation was solid.
(3) The judge was entitled to reject an accidental explanation. Dr Cary considered it but had never seen such a case in this age group. Dr Kolar was of a similar view. They and Dr Leadbeatter considered that the likelihood of strangulation was significantly increased if the genital injuries were shown to have been inflicted ones.
(4) As to the genital trauma, the judge was entitled to find that there was no sexual motivation. The rejection of sexual motivation necessarily opened the door to other motivations. The findings did not suppose any distinctive procedures associated with FGM.
(5) The refusal to allow expert evidence deserves careful attention, but no formal application was made and the value of such evidence would be doubtful. In the event, Dr Lipetz' evidence did not exclude some preparatory examination having occurred.
(6) The steps taken by the judge in adjourning for further evidence and submissions ensured that the process was fair. It is accepted that detailed questions about events at N's house were not asked. W could have given more information if he wished, and the absence of any evidence that he saw or heard something amiss does not affect the finding.
(7) The judge was entitled to reach his conclusion about perpetration, even though it did not accord with the local authority's case. The mother's wakefulness was highly significant. As to improbability, the judge carefully emphasised the positives in the family. Once he had found the injuries to have been inflicted, the relative improbability of a family member being a perpetrator dissolved. There was no need for him to speculate about a motive.
(8) The judge's credibility findings differentiated between the boys (broadly credible), the father (credible in part) and the mother (credibility absent). These conclusions were reached as a result of the trial process and should not be disturbed.
(9) The judge confirmed after handing down judgment that his findings were against the mother and not against "the other women". No other effort was made to seek clarification of any aspect of the judgment about FGM. In any case, the mother could have carried out the assault undetected. So there is no ambiguity, nor any unfairness to others. Re W is distinguishable because of this, and because the finding made against the mother was within the parameters of the case and all parties had the opportunity to address it with evidence and submissions.
(10) As to collusion, the timings from phones alongside the family's own evidence showed a 40 minute unexplained period.
(11) Finally, the judge himself recognised that a case may fall short of proof.
The position of the Children's Guardian
Appeals from findings of fact
Principles of fact-finding
"15. I am the first to acknowledge that a judge is entitled to take a proactive, quasi-investigative role in care proceedings. Equally, she will make findings of fact on all the evidence available to her, including her assessment of the parents' credibility; she is not limited to the expert evidence. I am also content to decide the question in this appeal on the basis that a judge is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored.
16. All that said, however, the following propositions seem to me to be equally valid. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised."
"15. It is an elementary feature of a fair hearing that an adverse finding can only be made where the person in question knows of the allegation and the substance of the supporting evidence and has had a reasonable opportunity to respond. With effective case-management, the definition of the issues will make clear what findings are being sought and the opportunity to respond will arise in the course of the evidence, both written and oral."
"95. Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:
a) Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence;
b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;
c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness."
" evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
Conclusion: The FGM finding
"Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised."
In my judgment, the judge did not heed this guidance.
(1) The FGM theory had no convincing roots in the evidence. The justifications given in the judgment were:(a) Y's conversation with the foster carer.(b) The mother's reason for distinguishing between male and female circumcision.(c) All the adult women having suffered FGM.(d) The older generation being more likely to continue FGM and O being a respected older woman.(e) The mother staying out late on her first excursion since Z's birth.(f) The mother misleading the father about her plan to go to O's house.(g) The vague and unconvincing account of the events of the Saturday.(h) The phone calls in the night.(i) The improbability of an assault passing undetected in the crowded home.(j) The mother's lack of credibility in relation to events on the Sunday.With respect to the judge, the first eight of these matters are flimsy and contestable foundations for such a serious finding and the last two are non-specific and offer no support for it.
(2) The finding followed, indeed it depended upon, an incomplete assessment of the evidence. For example, the striking fact that twenty relevant children living in this country had not suffered FGM was self-evidently a matter that needed to be considered, and was presumptively more relevant than what had happened to their mothers in OC. Similarly, no attempt is made to reconcile the finding with the stance of the mother's influential brother. Other unchallenged evidence provided by the family on the issue of FGM was given no weight.
(3) Further, and to my mind critically, the judge was bound to descend to practicalities. But he did not have the necessary evidence to do that. He had a level of background information about the events of the day but, as no one was focusing on N's home as a potential crime scene, no detail. The police had not investigated at that address and, so far as I am aware, the court had no information about the most basic matters, such as the layout of the home, or any accounts from those present. The mother and N were there throughout and N's husband arrived later. There were no fewer than eleven children in the property, of whom seven were aged between 10 and 15. Any finding that S was seriously assaulted there required the court to descend to a thorough assessment of all available evidence. It could not be reached by a process of logic.
(4) Insofar as the judge did rely on logic, it is difficult to follow his reasoning. His twofold conclusion at  was (i) that the genital injuries were unlikely to have been inflicted after S returned home and (ii) that the forensic evidence established that they would have been sustained during that day. In support of the first conclusion, he had set out in the preceding paragraph a list what he described as key features of the evidence. None of these features could in my view be taken to support the theory that there had been separate assaults at separate locations. As to the second conclusion, the forensic evidence did not point to the genital injuries as having been caused outside the home, it merely permitted it. However, building on this reasoning, the judge concluded at  that because the genital injuries were inflicted during the day they must have happened in N's home. This process of reasoning does not appear to be logically sound or based in the evidence. It is also unclear what the judge meant when referring to "the other women" and the expansion of  does not provide clarity. The result of all this is that the reader can have no real sense of what has actually been found in relation to the genital injuries.
(5) The finding had no roots in the medical evidence. Such evidence as there was did not support any kind of attempt at FGM.
(6) Despite the idiosyncratic subject matter, the judge declined to allow specialist cultural evidence to be called, and as result we know nothing about whether there is such a concept as a preparatory examination, nor what the likelihood is of a mother who is not a cutter attempting FGM on her own child.
(7) Perhaps because the inquiry did not descend to practicalities, it led to the equivocal finding at  that the mother and/or other women were responsible. This, as Ms Ball says, creates an impression of a group of women gathered to carry out FGM, when the evidence was that there were no other women.
(8) Ultimately, in the words of Re G and B, there was no good reason for the court to depart from the way in which the local authority had framed its case. The course taken by the judge is the more surprising where the parties had repeatedly warned him about the lack of evidence to support the theory, or at any rate the theory as they understood it to be.
Conclusion: The other findings
Conclusion: Substitution of findings
"(a) The interests of the child (which are relevant but not paramount);
(b) The time that the investigation will take;
(c) The likely cost to public funds;
(d) The evidential result;
(e) The necessity or otherwise of the investigation;
(f) The relevance of the potential result of the investigation to the future care plans for the child;
(g) The impact of any fact finding process upon the other parties;
(f) The prospects of a fair trial on the issue;
(g) The justice of the case."
(1) A second retrial would not serve the interests of justice and would be unjust and oppressive. It would constitute a breach of the family's entitlement under art. 6 and at common law to a fair hearing within a reasonable time. The family has already faced what he describes as two botched trials in which different cases have been levelled against them by three arms of the state. Their physical and mental health is threatened. For E (18) and W (15) in particular, a continuation of proceedings that have consumed so much of their childhoods would be unfair and an abuse of process.
(2) The delay has made a satisfactory outcome to a further trial less likely. The evidence has become stale and the ability of lay witnesses to recall events and give their accounts effectively has been hampered by constant repetition and by hearing the accounts of others. This must confound assessments of credibility.
(3) The forensic value of a further trial is doubtful. All matters are in issue. The evidence against the family members is weak and circumstantial. Even if a four person pool finding was made, its value is limited. Risk can be managed without findings, and no harm has come to the younger children in the last three years.
(4) Mr Twomey also renews a submission that a pool finding that included a child who is not a carer could not satisfy the threshold. I do not consider that this is likely to be well-founded, but we did not hear full argument and it is unnecessary to take time on it on this appeal.
(1) The seriousness of the issues. In a case of this extreme gravity, a party, here the local authority, should in my view only be shut out from a determination of its case if there are strong countervailing reasons.
(2) The interests of the children. If it is possible, it is in the interests of all the children, and the youngest three in particular, for there to be valid findings about their sister's death and for measures to be taken for their protection if that proves to be necessary.
(3) The likely evidential result. Although it is profoundly unsatisfactory that there is still no clarity about how S came by her injuries and death, there is no reason to believe that a rehearing cannot provide a legally valid conclusion that would make the matter clear, or at least clearer. This case is different to Re J, where the evidence was incapable of supporting findings. Here, two appeals have succeeded because of errors of process and not because the evidence is incapable of justifying a s.31 finding. If the local authority was to succeed, the court might face a very difficult welfare decision, but that is not a good reason for abandoning the proceedings.
(4) The fairness of a further trial. I am alive to the concerns expressed about litigation fatigue and its possible effect on the integrity of the trial and the assessment of witnesses. At the same time, it is at least possible that some of the professional evidence already heard can be carried forward so that it need not be given again. As to the lay evidence, the trial judge will no doubt be alert to the risks that have been pointed out to us. I would therefore not accept that there cannot be a fair trial.
(5) The impact upon the family. This carries significant weight where proceedings have already lasted for three years and where a further trial must considerably extend that period. The emotional cost to the family of the loss of S and of the continuous proceedings cannot be overstated. The Guardian has made the observation that they have not yet properly been able to mourn S's death. I am mindful of all this, and take it into account. In the end, however, it has not been shown that the burden of continued proceedings would be disproportionate to the seriousness of the matters in issue.
Lord Justice Newey
Lord Justice Underhill