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Children: Public Law Update

John Tughan QC of 4 Paper Buildings reviews recent important public law cases concerning children.

John Tughan QC of 4 Paper Buildings

In this article I will consider recent decisions that touch upon the following areas:

• Findings of fact and the role of the court when it disagrees with the parties' positions; the factors to be taken into account in deciding whether the case should be remitted for a re-hearing.

• Findings of fact and the duty of the court to consider the whole picture without compartments, even on a re-opened hearing.

• The need to comply with the rules relating to vulnerable witnesses.

• Disclosure from care proceedings to criminal proceedings.

• The need for legal representation on committal applications, and
the duty to assess the wider family.

In Re A (Children: Findings of Fact) (No 2) [2019] EWCA Civ 1947 the Court of Appeal was dealing with an appeal from a re-hearing.  The case had first been heard in 2017.  Francis J found that the local authority's case was not proved. The local authority's successful appeal (A (Children) [2018] EWCA Civ 1718) led to the second hearing before Hayden J.  On this second appeal the Court of Appeal again allowed the appeal and, uniquely in English care Law, ordered a third hearing of the facts.

The case involves the death of a 10-year-old child who was found to have a ligature mark around her neck and genital bruising.  However, the importance of the decision under discussion is not the complex medical evidence and how it interplays with the broad canvas evidence in the case but rather the duties of a judge in circumstances where his own case theory differs from that of any of the parties.

The judge found that the genital bruising was explained by a failed attempt at female genital mutilation at a different time from the strangulation and death. 
He rejected the case theory that had been at the centre of all the enquiries both inside and outside court, namely sexual assault coupled with strangulation.  The problem was that the discussion of the judge's new case theory of FGM and different events causing the injuries only specifically came up in closing submissions at the end of the second trial and without it being explored by the experts.  At the end of those closing submissions the judge allowed the lay parties to give evidence again on the issue of their disavowal of the practice of female genital mutilation but did not allow further expert evidence beyond a written question to one of the already instructed experts.  The reply to that question was that the particular expert had no experience of FGM and could not help.

In dealing with the court's role, Peter Jackson LJ set out the principles:

• Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation: A (A Child) (No 2) [2011] EWCA Civ 12.

• The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own: Re S (A Child) [2015] UKSC 20 at [20]. Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so: Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10;

• On fairness, the decision in B (A Child) [2018] EWCA Civ 2127 confirms that:

"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."

In dealing with the fact finding process, Peter Jackson LJ said this:

"The questions for every fact-finder are What, When, Where, Who, How and Why?  Their significance and difficulty varies from case to case. Some answers will be obvious while other questions can be extremely hard or even unanswerable. Sometimes a question may not need answering at all. At all events the questions come in no set order and each inquiry will suggest its own starting point. It will no doubt find apparently solid ground and progress from there, but conclusions can only ever be provisional until they have been checked against each other so as to arrive at a coherent outcome. At each stage, regard is had to the inherent probabilities and improbabilities surrounding what are inevitably abnormal circumstances...

The judge's conclusion also faces insurmountable procedural objections, which need not be elaborated once the transcript has been read. He revealed his thinking about FGM in general but at no stage did he unveil the specific finding that he went on to make. The parties were blindsided by a finding that not only departed from the way in which the case had been put but contradicted it."

Having allowed the appeal, the question then arose as to what the Court of Appeal should order.  Could it impose findings of fact?  In this case the answer was no.   This was not a case where there was a binary factual outcome and there were too many permutations to allow the Court of Appeal to properly substitute findings.

Should the Court of Appeal order a second re-hearing (and third hearing)?

Peter Jackson LJ found that the Court had a particularly broad discretion on the question of whether to remit for a further hearing:

"All relevant matters must be taken into account. Here, I take account of:

(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....Here, two appeals have succeeded because of errors of process and not because the evidence is incapable of justifying a s.31 finding...

(4)  The fairness of a further 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."

In Re D (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 2302 the court below had decided that the anal injuries were caused by Y, a partner of the mother.  Fresh evidence came to light through number-plate recognition software that established that Y could not have been present at the relevant time.  The judge re-opened the factual inquiry, limited to the question of the identification of the perpetrator of the inflicted injury.  The issue of whether the injury was inflicted was expressly not re-opened and no application was made for it to be re-opened.  The judge then found that the inflicted anal trauma was caused by an unidentified male and that the mother knew who was responsible.  The mother appealed.

Baker LJ gave the lead judgment in the Court of Appeal.  The judge had been mistaken to limit the rehearing to the issue of perpetration.  There was a relationship between perpetration and causation.  By doing so, his analysis was compartmentalised whereas in investigations of suspected child abuse the totality of the evidence had to be assessed. 

Where there were various possible causes of an injury, medical evidence considered in isolation might suggest that the injury was inflicted. However, if the other evidence demonstrated that it was improbable that any person could have inflicted the injury, an assessment of the totality of the evidence might lead to the conclusion that, on a balance of probabilities, the injury was not inflicted.

The judge should have reached that conclusion on his own motion notwithstanding the absence of any such application from the parties.

In Re N (A Child) [2019] EWCA Civ 1997 the mother had been identified as a vulnerable witness after a factual conclusion that she was in the "pool" for the perpetration of the injuries to the child. 

During the assessment process leading towards the welfare stage of the proceedings the psychologist reported that the mother had significant difficulty in terms of her ability to understand and express herself verbally. A report was obtained recommending that the mother have the assistance of an intermediary. The judge refused the mother's application for a rehearing and she appealed.

The Court of Appeal held that a wholesale failure to apply the Family Proceedings Rules 2010, Part 3A made it highly likely that the resulting trial would be judged to have been unfair.

In Re M (Children) [2019] EWCA Civ 1364 involved an attempt at a review of the law relating to disclosure between care proceedings and criminal proceedings.  The material disclosed included position statements filed on behalf of the parents.  The attempt failed and the Court of Appeal confirmed that the approach in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam. 76  remained correct.

The case is interesting for the Court's treatment of the distinction between the right to silence and the privilege against self-incrimination.  And also for the description of the way disclosed material can be used within criminal proceedings.  Neither is new but both are informative.  The Court cited with approval the conclusions of Keehan J:

"Keehan J concluded that

'The second factor to which I attach considerable weight is that I do not consider – absent binding authorities to the contrary – that my granting the application sought by the police at this stage would, in and of itself, breach the parents' right to silence, because the police, if the application was granted, will only use the information to guide and inform their investigative process. This might lead to the police instituting criminal proceedings against the mother and/or the father. The extent, however, to which, if at all, any information which has been disclosed by this court in relation to what the parents have said in statements or position statements could or should be used in any subsequent future criminal process, will be a matter for the Crown Court judge presiding over any criminal trial to determine, in addition to any potential arguments of abuse of process which may be advanced on behalf of the mother and/or the father.'

...A judge at the early stages of family proceedings, where any potential prosecution and criminal proceedings are matters that may occur in the future, is not in any position to ensure the overall fairness of the entire investigatory and trial process. He or she can, and must, do what they can to undertake a fair process in the Family Court and that includes affording careful consideration to applications for disclosure, which should only be granted if the criteria in Re C are satisfied and it is necessary and proportionate to do so."

In Re O (Committal: Legal Representation) [2019] EWCA Civ 1721 the Court of Appeal held that a respondent to a committal application was entitled to be provided with legal representation if they wanted it.  Non-means tested legal aid was available.  If a court did not ensure that such protection was available any resulting committal order might be procedurally irregular.

In H (Care & Adoption: Assessment of Wider Family) [2019] EWFC 10 Cobb J decided that the father should be given an opportunity to notify his own family of the existence of the child who was the subject of the care proceedings.  Adoption was the contemplated care plan.  The father should be supported by the local authority and Guardian in doing so.  If he chose not to do so, the local authority was authorised to inform the paternal grandparents of the existence of the child concerned.

In reaching that conclusion Cobb J reviewed the statutory provisions, case law and guidance and concluded that there was no duty on a local authority to notify wider family members of the existence of a child in care proceedings, and/or assess them, when they were not proposed by the parents as potential alternative carers and where the parents (or either of them) specifically did not wish the wider family to be involved.  However, the ethos of the Children Act 1989 was plainly supportive of wider family involvement in the child's life, save where that outcome was not consistent with their welfare.

John Tughan QC