Hot off the press this week is the judgment in Re H-M  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)  EWCA Civ 1344;  4 WLR 25. There, Lord Justice Baker referred to Re E (Children: Reopening Findings of Fact)  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)  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:
What to take away and apply to similar cases
We suggest the relevant points to take away are these:
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)  EWCA Civ 1344;  4 WLR 25. Penny then appeared with Saiqa Chaudhry (of New Court Chambers) for KF in Re H-M  EWCA Civ 748, instructed by Julie Mackay of Hepburn Delaney LLP.
This article ‘Re H-M  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: firstname.lastname@example.org