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President clarifies court’s approach to applications to vary findings in children cases

Father’s appeal in Re ZZ and Others [2014] EWFC 9 dismissed

In Re ZZ and Others [2014] EWFC 9, the President has clarified the approach which the court should adopt to efforts to persuade it to vary findings already made in children proceedings.

The appeal arose 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.

In 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, including complaints against SA ZN and ZZ. A fact finding hearing in relation to those 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. Parker J was referred to and sought to apply In Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117 (Re B), a decision of Hale J (as she then was) and Birmingham City Council v H and others [2005] EWHC 2885 (Fam), (Birmingham (No 1)).

Following the further fact finding hearing, which in the event lasted eight days, the District Judge gave a further judgment on 9 October 2013. 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 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.

In reviewing the case law, the President cited the judgment of Hale J in Re B where she said:

"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."

The President also referred to the judgment of McFarlane J in Birmingham City Council v H and others [2006] EWHC 3062 (Fam) (Birmingham (No 2)):

"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 ([2005] EWHC 2885 (Fam) at [55]) 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.

[43] 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.

[44] 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.

[45] 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."

The President concluded his analysis:

"31. In common with McFarlane J in Birmingham (No 2), I agree with Charles J's formulation in Birmingham (No 1) of the three stage approach.

32. The same three stage approach applies, in my judgment, whether the issue arises before the same judge or a different judge, whether in the same or different proceedings, and whether in relation to the same or different children. ...

33. So far as concerns the first stage I agree with what Hale J said in Re B, in particular in the passage I have set out above. I add this: one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher. I have misgivings about McFarlane J's use in Birmingham (No 2), paras 42, 55, of the words I have emphasised in paragraphs 16-17 above. I suspect that in significant part they reflected the approach of Lord Nicholls of Birkenhead. Be that as it may, I think, with great respect to McFarlane J, that the nuance is wrong.

34. So far as concerns the second stage, the ambit of the review or rehearing, I doubt that one can sensibly be prescriptive. Much will turn on the forensic context and the circumstances of the particular case.

35. So far as concerns the third stage, the proper approach in my judgment, subject only to what I have said in paragraph 33 above, is that spelt out by McFarlane J in Birmingham (No 2) in the passages I have quoted. 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. 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. I think that Charles J's phrase "a high test" is best avoided at this as at previous stages. I can well understand why, in the particular circumstances of Birmingham (No 1), where there were concurrent findings of two High Court judges and the Court of Appeal, Charles J used those words, but to elevate them to a test – a legal principle – is unwarranted, unnecessary and potentially misleading. Indeed, I think with respect to Charles J that reference to "a high test" at the third stage is simply wrong, essentially for the reasons given by McFarlane J in Birmingham (No 2) at paras 42(iii) and 55."

The appeal was dismissed.

Diana Murphy of Goldsmith Chambers (instructed by Arani & Sons) represented the appellant father. Roger McCarthy QC of Coram Chambers (instructed by the local authority's Head of Legal Services) represented the local authority. Annie Dixon of 1 Pump Court (instructed by T V Edwards) represented ZZ and AZ. Shiva Ancliffe of Coram Chambers (instructed by Lomax solicitors) represented FA, ARA, KA and ASA (by their children's guardian). The mother appeared in person.

The judgment is here.