|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CTD (A Child: Rehearing)  EWCA Civ 1316 (14 October 2020)
Cite as:  4 WLR 140,  1 FCR 139,  WLR(D) 551,  1 All ER 803,  1 FLR 868,  EWCA Civ 1316
[New search] [Context] [View without highlighting] [Printable PDF version] [View ICLR summary:  WLR(D) 551] [Help]
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Mr Justice MacDonald
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HENDERSON
LORD JUSTICE PETER JACKSON
| CTD (A Child: Rehearing)
Andrew Bagchi QC and Param Kaur Bains (instructed by Enoch Evans LLP) for the Respondent Father
Lorna Meyer QC and Orla Grant (instructed by Thornes Solicitors) for the Respondent Mother (written submissions only)
Richard Hadley and Louise Higgins (instructed by Walsall MBC) for the Respondent Local Authority (written submissions only)
Piers Pressdee QC and Kristina Brown (instructed by Baches Solicitors) for the Respondent Children by their Children's Guardian (written submissions only)
Hearing date: 7 October 2020
Crown Copyright ©
Lord Justice Peter Jackson:
Rehearings in family cases
(1) It asks whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting.
(2) If that hurdle is overcome, it decides how the rehearing is to be conducted.
(3) It rehears the matter and determines the issues.
This appeal is an opportunity to draw together and in one respect to simplify the approach to be taken at each of these stages, which I now consider in turn.
The first stage
"(1) The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation – the resources of the court and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and (d) the court's discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.2)  1 AC 853, 947, "must be applied so as to work justice and not injustice."
(2) The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.
(3) 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 conclusion upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone. The court will want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way; (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings."
Hale J observed that there may be other factors to be borne in mind. In Re E at  I noted that the court will need to be satisfied that the challenged finding has actual or potential legal significance: is it likely to make a significant legal or practical difference to the arrangements that are to be made for these or other children?
The second stage
The third stage
"The judge has to consider the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court."
However, that description was preceded by a sentence that needs further consideration:
"There is an evidential burden on those who seek to displace an earlier finding – in that sense they have to 'make the running' – but the legal burden of proof remains throughout where it was at the outset."
"16. The fullest analysis of the court's function at the third stage is to be found in the judgment of McFarlane J in Birmingham (No 2). In an important passage that needs to be quoted in full, he said this, paras 42-45:
"42 … Save for one matter of fine tuning to which I shall turn in a moment, there is agreement that the approach to be adopted to the burden of proof is as follows:
(i) The burden of proving the CA 1989, s 31 threshold criteria with respect to S is upon the local authority and remains upon them throughout;
(ii) The role of issue estoppel in CA 1989 proceedings has been adapted by the family courts. The classic statement of the law remains that of Hale J (as she then was) in Re B … I agree with the analysis made by Charles J … in this case ( EWHC 2885 (Fam) at ) where he indicated that there were three stages in such cases. At the first stage the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding. 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;
(iii) Questions of issue estoppel are primarily to be considered at the first stage. Once those who seek a review have passed that stage, issue estoppel is unlikely to be directly relevant either to the investigation process or to the hearing itself;
(iv) At the review hearing, the previous finding is the starting point of the local authority's evidence in relation to threshold. A finding of fact is strong evidence and should be followed in the absence of compelling evidence against it. To this extent those who challenge the finding bear 'an evidential burden' in the proceedings. The legal burden of proof rests upon, and remains with, the local authority throughout (emphasis added):
(v) An 'evidential burden' is an imprecise, non-legal term applied to the forensic reality faced by a party who seeks to challenge a presumption that otherwise arises in favour of another party by operation of law, previous finding or apparently conclusive evidence. It is no more than the burden of adducing evidence.
 In the present case, by adducing the evidence presented at this hearing the parents have discharged the evidential burden of putting up a case to challenge the previous finding. That being accomplished, it is for the court to conduct the process of evaluating that evidence. The legal burden of proof of maintaining the findings made by Bracewell J remains throughout upon the local authority.
 The remaining difference of emphasis that still exists between the parties is not without importance and it relates to whether or not any continuing 'burden' is placed on the parents once the hearing has actually commenced. The parents submit that, once they have discharged the evidential burden of showing that they have an arguable case sufficient to get through the 'gateway' of the court door and start the hearing, there is no continuing burden. The local authority submit that throughout the process priority should be given to the original finding of fact; that finding, they submit, is not simply reduced to the level of evidence in the case alongside any fresh evidence that is called.
 Given that I am clear that the extent of any burden upon the parents is limited to an 'evidential burden', and given that such a burden has no effect upon the legal burden of proof that remains with the local authority, I consider that the difference that remains on this point is more appropriately to be viewed in relation to the standard of proof, rather than in terms of burden. The forensic reality remains that throughout the hearing the parents have had to make the running to present evidence that challenges the original finding. The evidential burden is no more than that; a description of its effect does not go to the respective weight or priority that may be afforded to the previous finding."
17. There is a further important passage, paras 55-56:
"55 … once the hearing in a review process of this nature has commenced, the duty of the court is to look at the matter afresh. Issues of public policy relating to the priority to be given to earlier court decisions is in play at 'stage one' of an application to review a finding, when the question of estoppel is considered. Once that stage is passed, and the court is involved in evaluating the evidence itself, it would be wrong to afford some sort of priority to the evidence given and findings made at the earlier hearing that are to be considered within the review. Indeed it would be difficult to do so in any formal way. The starting point will be that a finding has been made. In a case such as this, that result can only have occurred because there already exists 'strong' evidence in support of it. Thus any fresh evidence, to get anywhere in achieving the aim of those who call it, must be sufficiently robust to challenge this hitherto 'strong' material (emphasis added)."
56. In analysing the evidence at this hearing I have readily adopted the approach suggested by Charles J at para  of his judgment. I have considered the fresh evidence alongside the earlier material (such as medical records) upon which it is based. I have taken as fixed points those parts of the detailed findings and judgment of Bracewell J which are either not challenged or remain intact despite the challenge that is being made on the question of the mother's credibility.""
At  Sir James endorsed McFarlane J's analysis with the exception of the words in italics at paragraphs 42(iv) and 55.
"104. Drawing all the various threads together and considering the evidence from the criminal trial alongside the earlier material, I conclude on the totality of the evidence that my findings of fact remain unchanged. Having conducted what I hope has been a thorough and comprehensive analysis of the individual areas where it is asserted that there was a change of evidence, and having evaluated that alongside the fact and circumstances of the conviction in the context of the totality of the evidence, I adhere to my original findings as to the perpetrator of the head injuries and my findings that I cannot identify the perpetrator of the rib fractures. …"
In carrying out that rehearing, Baker LJ did not ascribe any evidential burden to the father. Instead, he identified the new material in the context of the evidence on which the original findings were based and he synthesized all of the evidence in order to reach his conclusion.
"On 8 September 2014 C, who had spent the weekend with AO, before being returned to the care of F and M the previous evening, was … found to have a fractured femur and a 0.3 x 1cm blueish bruise over the pinna of her right ear. The history given by M was that she had fallen whilst walking the previous evening. M made clear to doctors that the fall took place at home after C had woken in her cot at around midnight and been taken to the kitchen for a drink. M stated that she did not witness the fall but called a family friend 'AO' and C was given paracetamol, stopped crying and slept until 8am. On 9 September 2018 the history provided changed and it was stated by M that C had been at the property of AO when C sustained injury because of a fall in the kitchen of that property. M stated that she had been told by AO not to reveal the fact that C was at AO's property. Examination of C on 8 September 2014 also revealed older injuries, which injuries I shall come to in detail below."
(1) A fracture of the medial region of the left femur, caused between mid-April 2014 and mid-May 2014;
(2) A subperiosteal haemorrhage to left femur, caused between early June and early July 2014;
(3) A subperiosteal haemorrhage to the tibia, caused between 14 and 21 July 2014;
(4) A fracture to the base of the left acromion, caused on or around 12 to 14 August 2014;
(5) A spiral fracture of the shaft of the left femur, caused on 7 September 2014;
(6) A bruise to the right ear, caused on or within days of 8 September 2014.
The medical evidence strongly pointed towards this series of injuries as being inflicted and not accidental. The two expert witnesses were not required to give evidence.
"In considering whether to amend the findings made by Her Honour Judge Hughes, the task of the court is not to re-try the issue in toto but rather to consider whether the findings should be the subject of amendment considering the new information. The forensic focus therefore, must be on that new information evaluated in the context of the evidence previously before the court. …"
"Having considered the new evidence… and the evidence of the expert witnesses given considering it, I am not satisfied that the new evidence leads to the conclusion that Her Honour Judge Hughes' finding that AO was responsible for the fracture to C's femur prior to her admission to hospital on 8 September 2014 requires amendment. Whilst it is the case that the new evidence regarding the violent conduct of F towards C in the family home indicates F was eminently capable of fracturing C's femur after she returned to the care of him and M on the evening of 7 September 2014, on her own statement before this court AO remains the more likely perpetrator of that injury. On AO's own account to the police, [and] her own statement before this court, which I am satisfied she did not resile from successfully, and her own concessions in oral evidence, I am satisfied that there is no proper basis in the new evidence for amending the finding of Her Honour Judge Hughes with respect to the fracture to the femur. I am further reinforced in my conclusions by the new evidence that comprises statements by E and the transcript of E's ABE interview. In this context, Her Honour Judge Hughes' finding also remains consistent with the medical evidence as set out above. I of course note the points made by Mr Feehan and Ms Hobbs (which I must also observe are not, strictly, matters arising from the new evidence before the court) that the perception of swelling by a non-expert can be unreliable, that in cross-examination neither parent described swelling to any great extent, that C was returned to their care "whingeing" or "whimpering" rather than "screaming" and that M stated she was able to change C's nappy. However, against this the evidence of Dr Bache was that AO's descriptions of C at her home were consistent with a broken leg and Dr Sprigg stated he was not familiar with the manner in which C expressed pain. Whilst I also acknowledge the possibility of an accidental mechanism, I am satisfied that the evidence in this case demonstrates that it is more likely than not that C suffered an inflicted injury to her femur.
I am however satisfied that the finding of Her Honour Judge Hughes that AO was also the perpetrator of the earlier physical injuries to C requires amendment considering the new evidence... The finding made by Her Honour Judge Hughes followed the learned judge's acceptance of the evidence of F and M regarding the circumstances in their home, which evidence was accepted. Within this context and having regard to her conclusions regarding the fractured femur, Her Honour Judge Hughes was satisfied that AO was responsible for all of the injuries. However, this position has significantly altered in light of the new evidence. The allegations made by the children regarding the violent conduct by F towards C are corroborated both by admissions on the part of F himself of physical abuse of the children, and evidence of other adults regarding what they saw or were told. The descriptions of violence given by the children are consistent with the type and level of violence the expert witnesses considered would be required to cause the earlier injuries. As set out above, I have made findings against F regarding his physical violence towards the children. This court has concluded that Her Honour Judge Hughes' finding that AO was responsible for the fracture to C's femur is sound notwithstanding the new evidence. However, I am also satisfied that the findings I have made with respect to F's use of physical violence against the children alter the analysis in respect of the earlier injuries. Having considered the totality of the evidence that was not available to Her Honour Judge Hughes, I am satisfied that the learned Judge's finding that the earlier injuries were caused by AO must be amended to a finding that the earlier injuries were caused by one or other or both of F and AO. The Schedule of Findings will be amended accordingly…"
And the judge then listed injuries 1 to 4 above before concluding:
"I am cognisant of the fact that this amendment to the findings raises the question of inherent improbabilities. Whilst I accept that it is inherently less probable that a child will be deliberately injured by two separate adults than by one adult, the latter does occur. Moreover, where the evidence suggests that there is a real likelihood or possibility that [that] is what occurred then that is the conclusion to which the court must come. In the circumstances, whilst I bear in mind the inherent improbabilities involved, I am satisfied that the amended finding follows from the new evidence on the balance of probabilities. Whilst the new evidence provides [the] basis for revisiting findings in relation to the earlier injuries, it does not do so in relation to last injury. Sometimes, sadly, children are injured by more than one person."
The judge refused permission to appeal in a detailed judgment.
"1. The judge adopted a standard of review in relation to the earlier findings that gave excessive weight to the judgment of HHJ Hughes and insufficient weight to the evidence which had caused him to reopen the findings made by her.
2. The judge adopted a standard of review in relation to the earlier [finding] that was incorrect in so far as it led him to a conclusion that was not supported by any of, and was contradicted by some of the evidence.
3. In adopting the incorrect standard of review the judge reversed the standard of proof, requiring the applicant/appellant to demonstrate that the original findings were wrong rather than requiring the local authority to prove them.
4. In finding that the applicant/appellant was a potential perpetrator of any of the injuries suffered the judge applied the wrong standard of proof, relying solely on the case of Re B  UKHL 35 and taking no account of the subsequent case of R (D) v Life Sentence Review Commissioners  UKHL 33."
I granted permission to appeal on the first three grounds and refused permission on the fourth.
Lord Justice Henderson
Lord Justice Floyd