Judge: Court of Appeal (Underhill, Peter Jackson and Newey LJJ)
Citation:  EWCA Civ 1947
The Court of Appeal has given important guidance, applicable by analogy, as to the approach to take to fact-finding hearings.
The case concerned a second fact-finding hearing into the death of a 10-year-old girl, S, found dead in her bedroom with genital injuries and signs consistent with strangulation in the winter of 2016; a death which Hayden J in a judgment in June 2019 concluded was caused by S’s mother after an attempt at female genital mutilation (FGM) followed by strangulation, hidden through collusion with S’s father.
Fact-finding necessitated by care proceedings brought by the local authority with regard to S’s siblings. The fact-finding proceedings concerned which if any of S’s family, specifically her parents and elder siblings were involved in her death. Her family in turn denied any wrong-doing and argued that S had died as a result of entanglement in netting on her bunk bed or in the alternative that she had been attacked by an intruder.
An initial fact-finding by Francis J over 15 days in November 2017 resulted in proceedings being dismissed as a result of what he described as serious deficiencies in the police investigation and in police disclosure. He found on the balance of probabilities that the local authority had not proved that S’s injuries had been inflicted by a third party as opposed to accidentally.
The local authority appealed. The Court of Appeal in A (Children)  EWCA Civ 1718 concluded that Francis J had not correctly approached the burden of proof in that he had not looked at the whole picture, effectively analysed the expert evidence about S’s injuries or taken them into account when considering the manner of death. Accordingly, the appeal succeeded and a retrial was ordered before Hayden J.
The retrial took place over 18 days between 21 January and 22 March 2019. According to the Court of Appeal’s judgment, FGM featured ‘only briefly’ in the evidence before the court, occupying only 1 page in the thousand page trial transcript. This fact notwithstanding, Hayden J concluded that S’s death was as a result of an attempt at FGM followed by strangulation, both committed by her mother.
The parents and S’s elder brothers appealed on a number of grounds, essentially arguing that Hayden J wholly failed to look at the totality of the evidence. Instead, they argued, he developed a theory of his own and strained to fit the facts of the case into it. The family further argued that, the judge gave “undue prominence to their origins and assessed their religious and cultural identity in an unbalanced way. The wider canvas showed no relevant family pathology, no mental illness or personality disturbance, and no relevant substance abuse. These matters were treated in a manner that was discriminatory in terms of Art. 14 as applied to Arts. 6 and 8.” (para 80).
Following Re B (A Child)  UKSC 33 and noting at paragraph 92 that an appeal court will rarely even contemplate reversing a trial judge’s findings of primary fact unless a finding is insupportable on any objective analysis it will be immune from review, the Court of Appeal held:
The judge has had the opportunity to make a comprehensive assessment of all the information – written, verbal, non-verbal and visual – when reaching a conclusion. This court should therefore only interfere with findings of fact in limited circumstances, for example where there has been a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence: Henderson v Foxworth Investments Ltd  UKSC 41;  1 WLR 2600, per Lord Reed at . Without such error, an appeal can only succeed if the appeal court is satisfied that the decision cannot reasonably be explained or justified and is one that no reasonable judge could have reached: ibid at [62, 67].
The Court of Appeal then set out at paras 93 to 99 a useful précis of the principles of fact-finding.
“… evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.” Dame Elizabeth Butler-Sloss P in Re T (Abuse: Standard of Proof)  EWCA Civ 558;  2 FLR 838 at para 33.
Considering Hayden J’s conclusions in this case, Peter Jackson LJ concluded:
“107. […] that once all [the] questions [of what, when, where, who, how and why the deceased had come by her death] had been considered, it was the court’s task to decide what facts emerged and to consider whether they satisfied the threshold for making public law orders. In undertaking this task, the judge was operating within the framework of a sophisticated forensic process. There had been a police investigation, for all its faults. A large amount of information had been gathered in the course of two trials. The local authority had framed its case meticulously. The court had the benefit of expert opinion of the highest calibre and very experienced legal representation, all co-operating to assist the court to reach a sound conclusion.
108. It was against this background that the judge developed his own case theory. In such a vexed case, he was bound to consider all the possibilities but, as he himself said, there must be parameters. In particular, a judge who believes he alone may have discovered a path that has not been revealed to other experienced professionals is bound to reflect on why that might be so. The situation in this case fell squarely within the sound guidance found in Re G and B – cited at  above – which bears repeating:
“Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go “off piste”, and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised.”
In my judgment, the judge did not heed this guidance.’
The Court of Appeal did not accede to the family’s submissions that the case should not, in the very unique circumstances, conclude without fact-finding: the case has been remitted for a second retrial.
Fact-finding hearings will be necessary in the Court of Protection in the circumstances set down in Re AG  EWCOP 78. When they are necessary, the same principles will apply as in relation to those fact-finding hearings held in care proceedings. The guidance and observations of the Court of Appeal are therefore as applicable to judges hearing cases in the Court of Protection as they are to those hearing care cases.