H-C (Children)

An appellate court will ordinarily respect a family judge’s factual findings. A finding must nevertheless be set aside where the reasoning is seriously flawed, internally inconsistent, or does not explain how conflicting evidence supports the conclusion.

Evidence treated as neutral or equivocal cannot later be deployed without explanation as proof of one competing mechanism. A lie on a material issue is not direct proof of guilt in family proceedings. It may support another body of evidence only where the safeguards applicable to lies are satisfied. Fresh evidence may be admitted on appeal where it could not reasonably have been obtained for trial, would probably have an important influence on the result, and is apparently credible.

In care proceedings concerning two surviving children, Newton J made findings about the death of their 13-month-old half-brother, A. He found that Mr C, who had been caring for all three children overnight, had deliberately pushed A into a pillow and caused him to suffocate.

The statutory threshold under Children Act 1989 section 31 was agreed independently of that finding. Mr C appealed the finding of smothering. He also sought to admit fresh evidence concerning the reliability of the two neighbours whose evidence the judge had treated as important. The central question was whether the fact-finding judgment provided a sustainable and coherent analysis capable of supporting so serious a conclusion.

1. Appeal allowed. The finding that Mr C smothered A was set aside. The Court of Appeal did not decide the underlying facts afresh. It held that the first-instance judgment could not stand as an acceptable analysis of the evidence supporting that grave finding.

2. Although appellate courts give substantial weight to fact-finding by an experienced family judge, intervention is justified where the conclusion was not open on the evidence, the reasoning is seriously flawed, or there has been a serious procedural or fair-trial error. Here, the appeal concerned the adequacy of the analysis rather than a re-evaluation of the core evidence.

3. The judge’s treatment of the medical evidence contained unexplained conflicts. Facial abrasions were left open to a non-traumatic explanation but later treated as supporting active smothering. Hypostasis was described as non-probative of the position at death, yet was later used against overlaying. The judgment also failed adequately to explain its treatment of the competing expert evidence, the absence of a frenular tear, and the evidence that A would have struggled whatever mechanism obstructed his breathing.

4. The judge also failed sufficiently to separate the two neighbours’ accounts and to explain the evidential use made of Mr C’s alleged lie about an undisturbed night. Applying the safeguards identified in R v Lucas (R) [1981] QB 720, a lie may corroborate evidence but cannot itself constitute direct proof of guilt. The judgment did not make clear whether the lie was used impermissibly as direct proof or as corroboration of other probative evidence.

5. The Court admitted fresh evidence under Ladd v Marshall [1954] 1 WLR 1489. It was relevant to the reliability of pivotal neighbour evidence and would probably have had an important influence on the result. The appeal would in any event have succeeded because of the defects already identified. A possible Family Court rehearing was left for consideration after the pending criminal trial.

• Court of Appeal (Civil Division): Allowed Mr C’s appeal and set aside the finding that he had smothered A: [2016] EWCA Civ 136.

• Family Court, Manchester: Newton J made the challenged fact-finding determination on 25 August 2015 in care proceedings.