Family Court refuses application to reopen findings made in 2016

A Family Court judge has rejected a mother’s “speculative and hopeful” application to reopen findings of fact made in 2016, which found her to be the perpetrator of injuries inflicted on her child when he was a small baby.

In Z, Re (Care Proceedings: Reopening of Fact Finding) [2023] EWFC 137, Mrs Justice Knowles concluded that she was “unpersuaded that there are solid grounds for believing that the 2016 findings [made by HHJ Orrell] require revisiting”.

Mrs Justice Lieven said the case concerned four children: a boy, Z aged 7; a girl, W aged 3; a boy, Y aged 2; and a girl, X aged 1.

Z, Y and X all share the same father. The identity of W's father was not known to the court.

Z's mother is the father's first partner, K. The father’s second partner, L, is the mother of W, Y and X.

All four children are the subject of care proceedings listed for next month.

The judge noted that all four children are in foster care. Z lives with his maternal aunt, the sister of K, and the three younger children live with foster carers.

Mrs Justice Knowles said: “This hearing was listed to determine K's application to reopen findings of fact made in 2016 by HHJ Orrell in the context of care proceedings brought by a different local authority in respect of Z when he was a small baby”.

In April 2016, a local authority issued care proceedings in respect of Z who was then just over three months old. Z was found to have sustained a number of serious injuries and the court directed that there should be a fact-finding hearing to determine how and by whom those injuries had been caused.

The fact-finding hearing was conducted in September 2016 by HHJ Orrell, who found the following:

a) Z had sustained four fractures to the ribs on his back and front. There was a small bruise under his left eye and a roughly circular bruise below the angle of his right jaw;

b) Z had significant bruising on the front and back of his chest and on his shoulder blades;

c) Z had sustained trauma to his liver and to the internal wall of his chest;

d) On the unchallenged medical evidence, these injuries were inflicted on two or more occasions;

e) The only people who could have caused these injuries were the father and K;

f) K was Z's primary carer;

g) Applying the criminal standard of proof, K inflicted both sets of injuries and the father had not inflicted any of the injuries;

h) K was described as being "manipulative, highly intelligent and has skilfully arranged the evidence and her recollections so as to implicate, somewhat obliquely, a very vulnerable father, particularly as it seems agreed between the parents in the past he accidentally inflicted a very small cut on [Z's] lip".

In March 2018, Z was placed into his father's care and K was permitted to have contact with Z five times each year, supervised by the local authority.

The judge noted that the father commenced a relationship with L in April 2020 and they began to cohabit in March 2021 after W was born. All four children lived with the father and L though Z visited his maternal aunt every fortnight for weekend staying contact. He continued to see his mother at contact supervised by the local authority.

In May 2022, Z's school made a referral to a different local authority due to safeguarding concerns it had about him. Z had alleged in May 2021 that his father had hit him and bitten him.

On 31 July 2022, X – then a six-week-old baby - was taken to hospital by L and paternal grandmother and, on investigation, was found to have sustained a number of significant injuries. “Those injuries were confirmed as findings of fact at the hearing in June 2023”, said Mrs Justice Knowles.

She added: “Additionally, I found that all the above injuries had been inflicted during probably two incidents of abusive handling involving different mechanisms. […] The injuries to X were inflicted by either her mother, L, or by the father.

“The perpetrator of these injuries failed to obtain medical help for X at the time the injuries were caused. If the perpetrator of the older injuries was the father, L was aware of X's pain and distress in consequence and/or the causative events and failed to obtain medical help for X. Both the father and X failed to obtain timely medical help for X's acute injuries on 31 July 2022.”

The judge said that neither L nor the father gave her a “satisfactory, let alone, reliable or truthful account” of X's life.

She noted that following his removal from the family home, Z had told his maternal aunt that the father and L had "proper fights" in which each hit the other. Z said he had never been hit or hurt by anyone and denied telling his teachers that his father had hit him.

However, the local authority did not pursue any findings about this material at an early stage in the fact-finding hearing, a decision which the judge described as “wise”.

Turning to the positions of the parties, the judge said that counsel for the mother, K, submitted that there was “genuine new information which warranted that course”, namely:

(a) the father was now in a pool of perpetrators, restricted to just two, one of whom had inflicted very serious injuries on a small baby;

(b) the father had failed to obtain timely medical help for X;

(c) the injuries inflicted on X were strikingly similar to those inflicted on Z in 2016;

(d) there had been safeguarding concerns about Z and Z had said that his father had been fighting L in the family home; and

(e) the father had been found to be evasive, untruthful and unreliable when giving evidence on matters of critical importance.

The judge added, however, that counsel for the mother “accepted that K was not stating that she remembered new matters relevant to Z's injuries and she accepted that she had not acquitted herself well in cross-examination at the 2016 hearing.”

The local authority, the father and the children's guardian all opposed K's application.

Counsel for the local authority submitted that a pool finding in relation to the perpetrator of X's injuries was insufficient – in combination with other factors – to reopen HHJ Orrell's findings. It was submitted that there was unlikely to be a different outcome to any re-hearing as, subsequent to the hearing before HHJ Orrell, K stated that she had “never been away from Z long enough for the father to cause the injuries and thus did not know how the injuries had been caused”.

Counsel for the father submitted that an uncertain perpetrator finding was a relevant factor to weigh in the balance but required the court to evaluate the weight to be given to it by dissecting the evidence in the circumstances of the particular case. “[Counsel for the father] doubted that, given the passage of time and the concession made as to K's memory, any re-hearing was likely to lead to a different outcome by identifying the father as the sole perpetrator”, said Mrs Justice Knowles.

Counsel on behalf of the children submitted that the only material new information was the pool finding implicating the father together with the allegations of harm to Z which the local authority had not pursued. This new information had no impact on three fundamental aspects of the 2016 findings, namely, the mechanism of Z's injuries; who cared for Z and when; and Z's presentation at key points in the chronology.

Turning to the law on ‘reopening findings of fact’, the judge said: "Whether the court is prepared to entertain an application to reopen a finding will depend upon whether it is satisfied that the finding has actual or potential legal significance, in other words, whether it is likely to make a significant legal or practical difference to the arrangements that are to be made for the children.”

Turning to caselaw on an ‘Uncertain Perpetrator’ she said: “A pool finding – or to put it more accurately – inclusion on a list of those who had the opportunity to cause injury to a child is not a finding on the balance of probabilities that a person harmed a child. Thus, in itself, such a finding cannot - when the court is considering whether or not to reopen findings of fact - constitute reliable, direct evidence about the perpetration of earlier injuries (by analogy with the analysis set out in [43] of Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348).

“However, in the context of an application to reopen findings of fact, inclusion on a list of those having the opportunity to injure a child can be information which invites further inquiry and which could contribute – alongside other evidence - to establishing solid grounds for believing that earlier findings require revisiting."

Mrs Justice Knowles concluded that she should refuse K's application to reopen the findings of fact made by HHJ Orrell in 2016. Setting out her reasoning, she said:

“First, there is a public interest in the finality of litigation and in matters not being relitigated without good reason, particularly in circumstances where the resources of the family justice system are under serious strain. The circumstances of this case do not constitute good reason for casting doubt on the findings made by HHJ Orrell.

“Second, any re-hearing would undoubtedly import delay and uncertainty into decision-making about Z....

“Third, the only material new information before the court is the pool finding made against the father and the allegations of harm outlined in paragraphs 10 and 14 above. With respect to the latter, the local authority did not invite me to make findings about these matters, a decision I described as wise in my fact-finding judgment. I did so because there are substantial forensic problems with these allegations such as inconsistent accounts given by Z together with a lack of other corroborative evidence. In my assessment, it would be very unlikely that a court would find them proved on the balance of probabilities.”

She noted that the pool finding means that the father is a possible perpetrator of the injuries to X and not a proven perpetrator. She added: “Though the father is the common denominator in respect of X's and Z's injuries, that feature does not make it so unlikely that the father and K could both have inflicted injuries on two separate children that solid grounds exist for reopening the 2016 findings.”

The judge continued: “Fourth, turning to the findings made by HHJ Orrell, these were made following a procedurally fair hearing where both the father and K were represented by counsel and where the court heard oral evidence from both of them. In his judgment, given ex tempore, HHJ Orrell identified inconsistencies between K's oral and written evidence which cast doubt on her credibility.”

She noted that the overall picture created by K's evidence was of someone not being honest about the circumstances in which Z came to be injured, adding that by contrast, the father was felt to be a “more honest and straightforward witness”.

She said that the impression created by K's evidence was reinforced by her position at the conclusion of the oral evidence - that K “accepted the probability that she was responsible for causing the injuries to Z even though she had no memory of doing so”.

Lastly, turning to the effectiveness of any rehearing, the judge noted that she considered that the court would be faced with “substantial difficulties” if she were to permit the responsibility for Z's injuries to be relitigated. “Z was injured some 7 years ago, thereby compromising accurate memories of what happened in the family home”, she argued.

Despite observing that HHJ Orrell was entitled to identify K as the perpetrator of Z's injuries, the judge highlighted her consideration that he was “unwise” to make reference to the criminal standard in doing so.

She said: “Though HHJ Orrell came to his conclusions in 2016, well before the Court of Appeal deprecated the importation of concepts from the criminal law into family proceedings, he should not have expressed himself as being satisfied on the criminal standard of proof.

“[…] No matter how sure they are of their findings, family judges should avoid expressing themselves in the way HHJ Orrell did given the subsequent authoritative decisions of the Court of Appeal cited earlier in this judgment.”

Concluding, Mrs Justice Knowles said: “I am unpersuaded that there are solid grounds for believing that the 2016 findings require revisiting. The likely legal and practical difference consequent upon embarking on a rehearing is very limited for all the reasons I have examined.

“Sadly, this application is speculative and hopeful and thereby fails to demonstrate that solid grounds for challenge to the 2016 findings exist.”

Lottie Winson