T and J (Children) [2020] EWCA Civ 1344

This was an appeal brought by a mother against findings made in care proceedings concerning her two sons, T now aged rising 7 and J now 4.

On 1st July 2018 J was admitted to hospital with a range of injuries including bruises to his forehead, face, ear, chest, abdomen and legs, bite marks at various points on his body, burns on his calf and thigh and deep lacerations to his penis and scrotum.

Following this admission to hospital the mother and her then partner, KF, were arrested on suspicion of inflicting grievous bodily harm. Both were interviewed and denied responsibility for the injuries.

Unsurprisingly the local authority commenced care proceedings the next day on 2nd July 2018 in respect of the two boys.

A fact-finding hearing in the care proceedings, which had been adjourned on a number of occasions finally took place in June 209 before HHJ Vavrecka. The mother who has some cognitive difficulties was assisted by an intermediary at the hearing. The findings sought by the LA were that J had sustained a series of non-accidental injuries between 30th May and 1 July 2018, which had been inflicted by the mother and/or KF. They both denied responsibility for any of the injuries. In addition the mother sought findings of domestic abuse against both of the boys’ fathers. Both men denied those allegations.

Findings were made that the multiple bruises on J’s forehead, face and ears were likely to have been caused by a pinch or blow and both had the opportunity to cause these injuries and there was a likelihood or real possibility that either of them caused these injuries. Many of the bite marks found were most likely to have been inflicted by T save those under the armpit, which on balance of probabilities were inflicted by the mother. KF was excluded as having caused any bite marks. The cuts to the scrotum and penis were caused by a sharp implement, possibly the glass found in the nappy. Neither mother nor KF’s account probably accounts for the cuts. If they were caused by glass in the nappy, somebody must have put the glass there. Either of them was the likely perpetrator of the penis and scrotum injuries. The bite marks identified as caused by T reflected a failure by the mother to supervise the children properly. The mother had failed to protect J from the other injuries. With regards to the allegations against the boys’ fathers, the mother’s evidence entirely lacked credibility and whilst there clearly was volatility in the relationships, the totality of the evidence did not satisfy the court on a balance of probabilities in respect of any of her allegations.

Initially HHJ Vavrecka gave a summary of his findings and then on 10th October 2019 he handed down what he described as a “partial judgment” indicating his final judgment would be available shortly.

At the beginning of October 2019 the criminal trial started and on 17th October the criminal trial concluded with the jury returning verdicts convicting KF of both counts of inflicting grievous bodily harm and the acquitting the mother of those charges but convicting her of the charge of cruelty. The mother’s solicitor informed HHJ Vavrecka of the verdicts. On 26th October invited HHJ Vavrecka to consider either substituting the jury’s verdict for his findings or consider an application to reopen the fact-finding hearing.

On 12th November 2019 a case management hearing took place before HHJ Vavrecka at which he formally handed down the final version of his judgment. Mother’s counsel made an oral application for him to reconsider his findings on the grounds of the convictions. The Judge declined to reconsider the findings at this hearing on the basis there was insufficient material before the court. The order recorded that if the mother should make an application to reopen the findings it would need to be made in writing by 3rd December 2019. The order also records that the mother informed the court that she does not seek to care for the children.

The mother appealed on the grounds the findings that mother had caused non-accidental injuries to J were wrong and were incompatible with the findings of the criminal court that it was beyond reasonable doubt that KF had caused the injuries. Another ground of appeal was that the judge was wrong not to draw adverse inferences from KF’s refusal to give evidence.

It was accepted by Mother’s Counsel on appeal that the fact of KF’s criminal convictions by itself was not sufficient reason for this court to allow an appeal against the findings in the care proceedings. It was necessary to look behind the convictions at the evidence heard by the Crown Court. The jury heard oral evidence from KF in the criminal trial unlike in the hearing before HHJ Vavrecka. Lord Justice Baker stated that the problem with the argument that the Crown Court had carried out a more complex analysis of what had happened to J is that it is not a valid ground of appeal against the Judge’s findings in the care proceedings [para 36]. Counsel for KF pointed out it is really a challenge to the judge’s refusal to reopen the findings after the conviction at trial.

Lord Justice Baker stated at para 37, “neither the fact that a jury has reached a verdict on criminal charges that is inconsistent with earlier findings in care proceedings nor the simple fact (if it be true) that the evidence heard by the jury was different from, or more comprehensive than, that adduced before the judge in the family proceedings is sufficient by itself to justify the conclusion that the findings in the family proceedings were wrong so as to require an appellate court to overturn the findings. It may, however, be sufficient to justify a reopening of all or part of the fact-finding hearing.”

In terms of the ground of appeal that the judge was wrong not to draw adverse inferences from KF’s refusal to give evidence, Lord Justice Baker stated at para 50, “the decision whether or not to draw an adverse inference from refusal to answer questions will depend on the circumstances of the case. The fact that KF was advised by his criminal lawyer not to answer questions is a relevant consideration.” He continues at para 51, “It follows that Judge Vavrecka was not obliged as a matter of law to draw an adverse inference against KF from his refusal to answer questions. He plainly considered the submission that he should draw such an inference and, in my judgment, cannot be criticised for rejecting it. Furthermore, although he declined to infer from his refusal to answer questions that KF was the perpetrator of the injuries, he took his failure to give evidence into account in his overall analysis, and the fact that he was as a result left with important questions unanswered was a material factor in his conclusion that KF could not be excluded from the pool of perpetrators of the injuries. His careful and considered balancing of this aspect, alongside his detailed analysis of the mother’s credibility and the lies she had told during the investigation, was plainly within his discretion as the trial judge.”

The appeal was dismissed. The Court of Appeal highlighted that it was open to the appellant to make a further application to the judge to reopen the fact-finding hearing on notice, identifying the evidence and other material on which it is based. At the time oral applications for reopening were made the mother’s solicitors were not in possession of the evidence from the Crown Court trial whereas now they have a transcript of much of the evidence including the evidence given by KF.

Lord Justice Baker refused to indicate how the judge should determine a further application to reopen the fact-finding hearing but he did “consider that the further evidence might have an important influence on the outcome but emphasise that the extent of its significance is a matter for the judge.” [para 62].