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H-M (Children) [2021] EWCA Civ 748

The Court of Appeal dismissed the mother’s second appeal relating to a fact-finding hearing. The criminal proceedings and the family proceedings had reached incongruent outcomes, in that the mother was in the family court’s pool of perpetrators but was exonerated of causing injury in the criminal court. Jackson LJ’s judgment upheld the lower court’s decision to refuse her application to reopen, and also helpfully sets out some differences between a reopening and an appeal of a fact find, as well as the proper approach when criminal and family court outcomes are incongruent.

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Background

This was the mother's second appeal relating to a fact-finding in a non-accidental injuries (NAI) case. The first had been an unsuccessful appeal against the findings of fact: T and J (Children) [2020] EWCA Civ 1344. She then applied to reopen the fact-find and when that application was refused, she appealed that decision. This appeal is therefore the second relating to this fact-finding hearing.

The relevant injuries, to her then one-year-old son, took place in June and July 2018. Judgment (following a three-week fact-finding hearing) by His Honour Judge Vavrecka was given in summary form in August 2019, then in a full judgment in November 2019. It concluded that both the mother and her then-boyfriend were in the pool of perpetrators. But in October 2019, between the fact-finding hearing and the full judgment, the criminal trial had concluded, finding only the boyfriend guilty: "the mother was completely exonerated as either a principal or secondary actor in the abuse perpetrated on the boy" (para 5).

The mother's first appeal, against the findings of fact, was heard and dismissed in October 2020: T and J above. The mother then applied to reopen the findings of fact on the basis of new evidence, and her application was heard by HHJ Vavrecka over two days and refused in March 2021. This second appeal was against HHJ Vavrecka's decision to refuse her application; it was granted permission to appeal and was heard 11 May 2021.

The law

The test for reopening is three stages (Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 (CA)). At stage one, the applicant needs to show solid grounds for believing that the previous findings require revisiting. Sir James Munby had set out what constitutes solid grounds in Re ZZ and Others [2014] EWFC 9 at para 33: "Mere speculation and hope are not enough, there must be solid grounds for challenge".

The second and third stages are not expressly set out in the current H-M judgment, because according to Re ZZ "One does not get beyond the first stage unless there is some reason to believe that the earlier findings require revisiting". For those seeking all three stages, Re E points to Birmingham City Council v H (No. 1) [2005] EWHC 2885 (Fam); Birmingham City Council v H (No. 2) [2006] EWHC 3062 (Fam); and Re ZZ [2014] EWFC 9.

Importantly, it was accepted at the lower court level that an inconsistent conviction is not a ground for reopening a finding of fact and that what mattered was the evidence that lay behind the conviction (para 22).

The test for an appeal remains the same: material error of law or a conclusion that was not reasonably available. Re W (Children: Reopening/Recusal) [2020] EWCA 1685 was cited by both HHJ Vavrecka (para 14) and by Jackson LJ (para 11), for its useful reminder that "it is rare for findings of fact to be varied".

The decisions

HHJ Vavrecka recognised "that the difference between the findings of the family court and those decisions reached by the jury do quite rightly lead to the family court needing to appraise its findings and whether there is a basis for reopening". He also noted in para 50 of his judgment (para 21 of the Court of Appeal judgment) that "the criminal and family courts have many differences, not only in relation to admissibility of evidence and to the standard of proof but also the focus and the wide canvas in particular that the family court as distinct from the criminal court has regard to". But ultimately HHJ Vavrecka concluded, citing para 43 of Re W, that "there is no new information of any significance that should persuade the court to review its findings".

The Court of Appeal agreed entirely. Jackson LJ noted in para 27 that "The differing outcomes of the two proceedings rightly led to the Family Court asking whether there was solid reason to believe that its findings required revisiting. The answer to that question did not depend on the existence of divergent findings, however striking at first blush, but on a careful analysis of the underlying evidence." The Court of Appeal judgment concluded "The outcome of the two proceedings is in some ways incongruent, but the underlying evidence was not" (para 27).

In relation to the appeal itself, Jackson LJ noted at para 25 that "the task for the mother has… been to demonstrate that… Judge [Vavrecka] was bound to conclude that the further evidence required him to reopen his previous findings. She has not succeeded in that task…".

Case summary by Lauren Suding, Barrister, Field Court Chambers.

For full case, please see BAILII