A & Anor v Northamptonshire County Counci & Ors, Court of Appeal - Family Division, October 17, 2018, [2018] EWHC 3244 (Fam)

Resolution Date:October 17, 2018
Issuing Organization:Family Division
Actores:A & Anor v Northamptonshire County Counci & Ors
 
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Neutral Citation Number: [2018] EWHC 3244 (Fam)

Case No: NF12C00104

IN THE HIGH COURT

FAMILY DIVISION

SITTING AT NOTTINGHAM

60 Canal Street

Nottingham NG1 7EJ

Date: 17/10/2018

Before:

MR JUSTICE KEEHAN

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Between:

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MR I PEDDIE, QC and MR M BAILEY (instructed by GT Stewart) for the First Applicant

MS A STOREY-REA (instructed by Helen Fitzsimons Family Law) for the Second Applicant

MS H MARKHAM QC and MR B MANSFIELD (instructed by LGSS Law) for the First Respondent

MR M BROOKES-BAKER (instructed by Family Law Solicitors) for the Third Respondent

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

MR JUSTICE KEEHAN:

Introduction:

  1. In April 2012 a child, E, then aged 7 weeks, was admitted to Northampton General Hospital. She was found to have sustained a number of fractures, which treating clinicians considered to be non-accidental injuries. In consequence, the Local Authority issued public law care proceedings.

  2. In his judgment given on 27 September 2012, at the conclusion of a fact-finding hearing, Mr Recorder Hedley found that: (1) E had sustained four fractures, namely of her eighth left rib and a metaphyseal fracture of her left knee; a metaphyseal fracture of her right knee; and a metaphyseal fracture of her right elbow. (2) There was no underlying condition which predisposed E to suffer fractures. (3) They were all non-accidental injuries. (4) They were inflicted either by the mother or by the father.

  3. The mother of E, A, has applied for permission to seek to set aside these findings. Her application is supported by E's father, B. The application is opposed by the Local Authority, Northamptonshire County Council, and by the Children's Guardian.

  4. The parents have an older child, D, who is now 9 years of age. E is now 6 years' old. As a result of the findings of fact made, both parents accepted they could not care for the children. At the final welfare hearing in May 2013, both children were made the subject of Special Guardianship Orders in favour of the maternal grandparents, with whom they remain living to date.

  5. The grounds of the application for permission to set aside the findings of fact are that there is evidence to suggest E was, at the relevant time: (a) vitamin D deficient; and (b) suffered from osteopenia which could lead to the conclusion that all four fractures resulted from an underlying condition which predisposed her to suffer fractures.

    The Law:

  6. There is a broad consensus between counsel as to the law I should apply when determining this application to reopen the findings of fact made in 2012. In the case of Birmingham City Council v HH & S [2005] EWHC 2885 Fam, Charles J said at paragraph 55:

    In my view the approach of the family court to earlier findings has three stages: firstly, the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding, here referred to by the parents as a review. If it does, the second and third stages relate to its approach to that exercise. 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, and thus it is at this stage that the court decides the extent to which the earlier findings stand, by applying the relevant test of the circumstances then found to exist.

  7. This approach was endorsed by the President, Sir James Munby, in Re ZZ & Others [2014] EWFC 9, when he further described the three stages as follows:

    "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. I do not, with all respect to Baker J's tentative comments, think that different approaches are called for in different forensic contexts. The attempt to create such a forensic taxonomy would, I fear, be productive merely of satellite litigation. Of course the application of the general approach in any particular case will reflect the circumstances of that case.

    "So far as concerns the first stage, I agree with what Hale J said in Re B (minors: care proceedings: issue estoppel) [1997] Fam 117. 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 Macfarlane J's use in Birmingham (number 2) paragraphs 42, 55, of the words I have emphasised in paragraphs 16, 17 above. I suspect that in significant part, they reflect the approach of Lord Nicholls in Re H (minors: sexual abuse: standard of proof) [1996] 563. Be that as it may, I think, with great respect to Macfarlane J that that nuance is wrong.

    "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. So far as concerns the third stage, the proper approach in my judgment, subject only to what I have said, is that spelt out by Macfarlane J in Birmingham (number 2). There is an evidential burden on those who seek to displace an earlier finding, in the sense that 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 (number 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 Macfarlane J in Birmingham (number 2).

  8. In considering the approach of the court to the first stage, the President referred to the observations of Hale J, as she then was, in Re B (minors: care proceedings: issue estoppel) [1997] Fam 117 at pages 128 to 129 when 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.

  9. The law relating to the reopening of findings of fact was recently summarised by Cobb J in Re AD & AM (fact-finding hearing: application for rehearing) [2016] EWHC 326 Fam. He endorsed the approach of the President in Re ZZ, and referred to the observations of Hale J in Re B. He continued as follows, at paragraphs 14 to 16:

    "I do not understand the President to be equating the test at 'stage 1' ("some real reason to believe the earlier findings require revisiting" of Re ZZ) with the test which is to be applied on an application for permission to appeal. That is to say, I do not have to satisfy myself that the mother stands a 'real prospect of success' of disturbing the original findings, or that there is 'some other compelling reason' why the case should be heard. The test in these circumstances is not so exacting.

    "On this application (and others like it, I am sure) there are at least two powerful public interests engaged, and in tension with one another: the strong public interest in finality in litigation (see Charles J in Birmingham City Council v H), in conflict (potentially at least) with the strong public interest in identifying accurately those who cause serious non-accidental injuries to children, wherever such identification is possible: see Re K (non-accidental injuries: perpetrator: new evidence) [2004] EWCA Civ 1181 at paragraph 55.

    "This second policy consideration was further defined in Re K at paragraph 56: 'It is in the public interest that children have the right, as they grow into adulthood, to know the truth about who...

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