In D (Fact-finding appeal)  EWCA Civ 2302 (20 December 2019) Lord Justice Baker gives the lead judgment concerning an appeal from His Honour Judge Baker. The upshot is that, the question of the child’s injuries having been the subject of two attempts at fact finding by His Honour Judge Baker (one a re-hearing in light of fresh evidence), the matter will now have to go back to a fresh judge for a third try. The little girl at the heart of the case is now 5 years old, her injuries were sustained two years ago and, as a consequence of the need to restart the fact finding process, her future will likely remain undecided for some months yet. She has been in foster care for 2 years, as has her brother who is briefly mentioned in the judgment.
How did this happen?
The little girl ‘D’ made some worrying remarks about her bum being sore, and about some men killing her, initially to her teacher (remember, she was just 3 at this time). A medical examination showed some injuries and the concern was that some sort of sexual abuse had taken place. She was spoken to by police but her account was confused and it was decided not to formally interview her. The local authority brought the matter to court and the little girl was placed in foster care whilst things were sorted out (where she remains).
Y had been the mother’s partner. He was joined to the case because it was thought he might be the man the little girl had mentioned and that he had inflicted the injuries. He denied it. The mother denied knowing anything about it.
At the trial the judge considered all the medical evidence and the evidence of the mother and Y. He didn’t believe them. His findings were that someone had inflicted the injuries to the child, and that Y was the person who had done it, through some sort of penetrative act (something had been put into her bottom).
Later on though, Y was able to produce some evidence that he hadn’t even been around at the time the medical evidence suggested the injury had occurred – so in essence he said ‘Look judge, your finding can’t have been right because I wasn’t there. Please look again’. The judge agreed to do so and set up a re-hearing.
Where things got confused was that the judge tried to limit the re-hearing to looking at the question of WHO had hurt the little girl (the second part of his decision). He didn’t fully reconsider the first part i.e. WHETHER OR NOT ANYONE had intentionally hurt her at all.
The Court of Appeal said that the judge should have fully re-looked at both questions – if Y hadn’t had an opportunity to hurt her it meant that the court really had to go back and re-evaluate whether or not taken all together, the evidence proved that someone else had hurt her, as opposed to there being some accident or other innocent explanation. He hadn’t done that properly so now the case has to go back and be started again.
The Court of Appeal said that the trial judge had a really difficult task but noted that, even though none of the lawyers had asked the judge to look again at whether the injury an inflicted injury, ultimately he was in charge and he should have dealt with this issue.
It’s important to understand when thinking about this that the evidence from the little girl was difficult to rely upon because it was so confused and confusing, and the whilst the medical evidence supported the idea that the injuries were inflicted by someone hurting the child, they couldn’t definitely say that was the only explanation. The judge had touched briefly on the question of causation (how the injuries were caused) at the re-hearing, but he placed quite a lot of weight on what the child had said. He described them as consistent but the Court of Appeal said that they weren’t consistent and the judge shouldn’t have placed so much weight on them. This was a second reason that the appeal was allowed.
One of the things the Court of Appeal had to work out was what to do if the appeal was allowed. The court considered :
- just saying the findings weren’t made at all
- just saying that the injuries were caused by an unknown male and overturning the findings against the mother (who the judge thought had hidden what had really happened with Y, and who had been criticised for lying)
- just starting again.
The first two options would leave Y in the clear but ultimately couldn’t leave the court confident that the child would actually be protected.
This is not the only case where repeated attempts to get it right have led to delay in decisions being made for children. We hope to write shortly about another case, reported in November last year, where two successive High Court Judges have held a fact finding hearing into how a teenaged girl died, both have reached different conclusions, and both have been successfully appealed. That case is now going to have to be reheard before a third High Court Judge before decisions about the dead girl’s siblings can be finalised. You can read about that case in The Daily Mail here, but we will try and produce a slightly clearer summary in due course.