Re H-M [2021] EWCA Civ 748: Inconsistent post-fact finding convictions

Hot off the press this week is the judgment in Re H-M [2021] EWCA Civ 748, in which the Court of Appeal (Peter Jackson LJ, Singh LJ and Stuart-Smith LJ) considered an appeal by a mother from a refusal by the trial judge to reopen findings made at the conclusion of a fact-finding hearing.

One might imagine if a jury convicts person A beyond reasonable doubt of harming a child, and person B is acquitted, this by itself calls into question a previous contradictory finding.   At first blush for them to co-exist may seem odd: if a jury is sure A did it, to the required criminal standard, how is that compatible with a family judge’s finding that there is a real possibility that A or B inflicted the injury?    And should the judge’s finding not inevitably be revisited, if for no other reason than in fairness to B (and to the child or children concerned)?

The short answers to those questions are: incongruent outcomes can legitimately co-exist; and no, “fairness”, or apparent unfairness of the outcome is not a driver for findings to be reopened.

Brief digest of the case

H-M children was a long-running and extremely sad case.  Put briefly: the family court was dealing with a range of very serious and wide-ranging injuries to child J (age 1) of a most distressing nature, inflicted over a period of months in 2018.   At the conclusion of a three-week fact finding hearing, HHJ Vavrecka made findings that resulted in the mother and her former boyfriend KF forming a “pool of perpetrators” with respect to a range of injuries; and made sole perpetration findings for some injuries against each of the mother and KF.

A few months thereafter, at the Crown Court, KF was convicted of a number of very serious offences indicative of his having inflicted the injuries on J, and of sexual assault.   The mother, on the other hand, was acquitted of any offence of perpetration of injury.

The mother initially appealed the outcome of the family court hearing, seeking to rely on fresh expert odontological evidence and material emanating from the criminal trial.  Amongst the grounds was a failure to draw an adverse inference against KF since he had refused to give evidence at the fact finding hearing.

Her appeal was dismissed on all grounds: see the judgment in T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25.  There, Lord Justice Baker referred to Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, where Peter Jackson LJ discussed the choices that arise where findings are challenged, between appeals and applications to reopen findings – this is an interesting judgment, and worth reading.    Despite dismissing the appeal on all grounds, Lord Justice Baker signalled that it remained open to the mother to apply to re-open the findings of fact, whilst giving no indication as to what it thought about the merits.

The mother did so, and rested her application on a range of evidence that had emerged in the crown court, including the transcript of KF’s evidence given for the first time in the criminal trial, additional expert odontological evidence that had been adduced on behalf of the mother’s defence and forensic evidence concerning KF’s whereabouts during a particular period of June 2018.   She also contended the conviction for sexual assault, and additional expert evidence about it, meant there were grounds to reopen findings because the issue of sexual motivation for a catalogue of behaviour had not been explored by the family court.

Following a two-day contested hearing, HHJ Vavrecka refused the mother’s application to reopen.  She appealed for a second time.  What did the Court of Appeal make of it?

Starting point on the law:

Readers will have in mind the case law about reopening findings, which was reiterated in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447:

“A court faced with an application to reopen a previous finding of fact should approach matters in this way:

(1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.

(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3) “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.” There must be solid grounds for believing that the earlier findings require revisiting.

Key points from the Court of Appeal’s judgment in Re H-M:

• Despite the fact that the family and criminal processes had resulted in radically different conclusions about who caused injuries to J, which was “striking… at first blush” – the Court of Appeal noted again that the mere existence of divergent, even highly contradictory, outcomes did not mean that a re-opening should follow.
• Whether there is a “solid reason to believe” that the family court’s findings require revisiting will depend on a detailed analysis of the evidence that underpinned the conviction(s): here the Court of Appeal appears to have adopted the rationale of Baker J (as he then was) in Re Q (Fact-finding Rehearing) [2019] EWFC 60; as also referred to in T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25.
• On close analysis, the evidence heard at the criminal trial was not so different as to establish any reason to think that a rehearing would result in any different finding from that in the earlier trial
• The conviction for sexual assault initially stood out to the Court of Appeal, but on examination, the evidence before the trial judge was “not materially different” to that heard in the crown court. No party in the family court had chosen to explore the issue of sexual motivation but that was not a fault in the fact finding process.
• The trial judge clearly had a very good grasp of the evidence heard during the fact finding hearing and was ideally placed to analyse the weight and significance of “new” evidence: his reasoning “attracted a wide margin of consideration”
• A decision about whether to reopen findings of fact is highly case-sensitive. An appeal court will be slow to interfere with a reasoned decision one way or the other and will only do so “where some error is manifest” – especially it seems if it is a decision of the trial judge.

What to take away and apply to similar cases

We suggest the relevant points to take away are these:

• Where subsequent criminal convictions arise, even where they are contradictory, expectations that a reopening of previously found facts will be permitted should be kept modest pending further analysis.
• Remember that juries convict on indictments and charges and they consider matters against a narrower canvas than the family court. Sometimes, evidence that forms part of the wider canvas may be the basis for a family court’s finding that is apparently discrepant with a jury’s conclusions.
• Bear in mind also that where, for example, a child has suffered multiple injuries, the family court will examine the circumstances of each one separately to arrive at findings about it. This may not be so in the crown court, where one criminal charge (say of GBH) may encompass a range of injuries over a period of time.  It is impossible then to be clear how the jury has considered each individual injury and culpability for it.  This is another reason why it is so vital to look behind the verdicts at the evidence.
• Preparing your reopening application will require a lot of leg work: obtaining full disclosure of prosecution and defence materials and transcripts of evidence if possible in both the criminal and family courts; and then conducting an in depth analysis of how the evidence is different and how best to persuade the judge that there is reason to think a rehearing will result in a different finding.  Make sure you can devote sufficient time and resource to preparation.
• Keep reminding yourself that your task is to convince the judge that the evidence is now such that there is reason to think a rehearing will result in a different finding.    From the Court of Appeal’s analysis, “solid grounds for believing that a finding requires to be revisited” do not stem from any perception of unfairness that the criminal process has ended so differently, even in circumstances where the impact of the family court’s findings has profound consequences for the family life of the person acquitted.
• On making your application for reopening, assist the court as best you can by presenting a clear analysis of the evidence given in the family and criminal courts. Before HHJ Vavrecka, and in the Court of Appeal, the respective parties had digested the evidence into comparative tables.  Both the trial judge and the Court of Appeal considered those to be helpful and appropriate for incorporation into the judge’s judgment.   Offer your trial judge this help if you can: make the answer you want easy to see and convenient to digest.
• If you lose, there is a significantly uphill task ahead to obtain leave and then succeed on appeal – particularly if it is the previous trial judge who refuses the application. Absent any error of law, according to Lord Justice Peter Jackson, you will need to show the Judge was “bound to conclude that the further evidence required him to reopen his previous findings”; and the Court of Appeal will be slow to overturn the trial judge’s analysis from his uniquely informed viewpoint.  That is a tall order, so keep client expectations modest!

Penny Howe QC appeared with Kayleigh Long (of New Court Chambers) for KF at fact finding before HHJ Vavrecka and in T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25.  Penny then appeared with Saiqa Chaudhry (of New Court Chambers) for KF in Re H-M [2021] EWCA Civ 748, instructed by Julie Mackay of Hepburn Delaney LLP.

This article ‘Re H-M [2021] EWCA Civ 748: Inconsistent post-fact finding convictions’ was written by Penny Howe QC & Jennifer Swan. To enquire about instructing either counsel please contact our clerking team via our switchboard on 020 7353 0711 or email: clerks@pumpcourtchambers.com