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T and J (Children) [2020] EWCA Civ 1344

The Court of Appeal dismisses a mother’s appeal against findings of fact made in care proceedings.

The Court of Appeal dismissed a mother's appeal against findings of fact made in care proceedings that the mother had either caused injuries, been a possible perpetrator of others and failed to protect through inadequate supervision of the elder child who injured the younger. She failed to get medical advice. Her partner KF was also found to have been a possible perpetrator. The mother's allegations of domestic abuse by the children's fathers' against her were rejected.

At the conclusion of the fact-finding hearing the judge delivered an executive summary [para 12] followed by a partial judgment and then a final judgment. By the time of the final judgment a criminal trial was completed. Oral applications were made to re-open the fact-finding on the basis that the verdicts in the criminal proceedings attributed the responsibility for injuries to KF the mother's partner who had declined to give evidence in the care proceedings (after being advised of s98 Children Act 1989). The trial judge set a timeable for a written application for a re-opening The mother instead pursued an appeal to the Court of Appeal. The judge provided further reasons after  a request to clarify one of his findings.

Baker LJ (with whom Robert J and McCombe LJ agreed)

• Rejected the argument that a criminal verdict (whether on the basis of different or the same evidence) was sufficient to set aside findings of fact on an appeal [para 37] but that it may be relevant on an application to re-open findings of fact; [para 37 and ….

• refused to admit evidence from an expert in odontology who had given evidence in the criminal proceedings but not the family proceedings applying Ladd v Marshall [1954] 1 WLR 1489, and Re W (Children) [2009] EWCA Civ 59 explaining why the material was not in effective new. [paras 39-45]

• Rejected the submission that the judge was obliged to draw an adverse inference from a refusal to give oral evidence, preferring the approach of Holman J in 49. In Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] EWHC 372 (Fam) to that of Johnson J in Re O (Care Proceedings: Evidence) [2003] EWHC 2011 (Fam). The Court decided that the trial judge had a discretion as to whether to draw an inference or not. [paras 50-51]

• Considered the powers of the Family Court to re-open findings of fact and affirmed the 3 stage approach set out in Birmingham City Council v H and others [2005] EWHC 2885 (Fam) Charles J, Re ZZ and Others [2014] EWFC 9 Munby P, and  Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 (CA).

• Emphasised that an application to reopen should be in writing, on notice and identify the material on which the application was based. As oral applications had been made in this case the Court refused to treat the appeal as such an application (as had been done in Re E). However, it was noted that a formal application could be made at the directions in the welfare hearing. The local authority was not proposing to oppose an application in relation to some of the findings, having now seen the criminal trial transcripts.

Case summary by Nicholas O'Brien, barrister, Coram Chambers

Read the full judgment of T and J (Children) [2020] EWCA Civ 1344 on BAILII