A (No. 2) (Children: Findings of Fact)

A family court may make findings outside a local authority’s pleaded case, but only with caution. Any different finding must be securely founded in the evidence, and the affected person must know the substance of the allegation and have a reasonable opportunity to answer it.

Findings must rest on evidence and proper inferences, rather than suspicion or speculation. The evidence must be evaluated cumulatively on the balance of probabilities, with inherent probabilities forming part of that assessment.

An appellate court may intervene where a critical finding has no evidential basis, relevant evidence was demonstrably overlooked, or the procedure was fundamentally unfair. It should substitute findings only where the appeal leaves one realistic outcome. Whether to order a further fact-finding hearing depends on the interests of justice after considering the gravity of the issues, the children’s interests, likely evidential value, fairness, delay and impact on the family.

A ten-year-old girl was found dead from strangulation and with recent genital injuries. Care proceedings concerning her five surviving siblings led to two fact-finding trials. The first judge dismissed the proceedings, but the Court of Appeal ordered a retrial in A (Children) [2018] EWCA Civ 1718.

At the retrial, Hayden J found that the mother had caused the genital injuries during a failed attempt at female genital mutilation and had later strangled the child. He found that the father colluded in concealing the events. Female genital mutilation had not formed part of the local authority’s pleaded case and had received little investigation or expert consideration.

The parents and older brothers appealed. The central questions were whether the findings were evidentially sustainable and procedurally fair, whether the Court of Appeal should substitute findings, and whether the proceedings should be remitted for a second retrial.

1. The appeal was allowed unanimously. The finding that the genital injuries resulted from an attempted or preparatory act of female genital mutilation had no proper evidential foundation and was reached through a fundamentally unfair process. Although a judge may consider possibilities outside the pleaded case, an unpleaded finding must be securely founded in the evidence and litigated fairly. The parties had not been told that an assault at the cousin’s home was contemplated, and neither the mother nor other affected witnesses had a proper opportunity to answer that allegation. The case fell squarely within the guidance in Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10 and B (A Child) [2018] EWCA Civ 2127 (paras [108]–[114]).

2. The proposed theory was also conceptually and evidentially unsustainable. It required separate assaults at different locations without solid supporting evidence. It did not account adequately for the child’s normal behaviour, the evidence that no relevant female child in the extended UK family had undergone female genital mutilation, the absence of supporting medical or specialist cultural evidence, or the lack of detailed evidence about events at the cousin’s home. The inference that the injuries occurred there was neither logically sound nor adequately explained (paras [109]–[113]).

3. Because the trial judge treated the two sets of injuries as intrinsically linked, the defective female genital mutilation finding undermined the findings that the mother strangled the child and that the parents colluded. The remaining findings could not realistically be preserved in isolation and were set aside (paras [115]–[117]).

4. The court declined to substitute a finding that the parents and older brothers formed a pool of possible perpetrators. Substitution was proper only if the appeal left one realistic outcome. The possible answers concerning how, by whom and why the injuries were caused were too numerous, particularly given the trial judge’s favourable credibility findings concerning the father and brothers (paras [118]–[120]).

5. A second retrial was nevertheless required in the interests of justice. The court balanced the exceptional gravity of a child’s unexplained death, the surviving children’s interests, the possible evidential value of valid findings, the prospect of a fair hearing, delay, litigation fatigue and the profound impact on the family. The evidence was not incapable of supporting findings; the earlier appeals had succeeded because of errors of process. The matter was remitted for early case management and rehearing. By agreement, the female genital mutilation protection order was set aside (paras [127]–[129]).

1. Court of Appeal (Civil Division): The present appeal was allowed unanimously. Hayden J’s findings were set aside, and the local authority’s application was remitted for early case management and rehearing.

2. High Court, Family Division: On the first appeal, reported as A (Children) [2018] EWCA Civ 1718, the Court of Appeal overturned Francis J’s dismissal and ordered a retrial. At that retrial Hayden J found that the mother had injured and killed the child and that the father had colluded in concealment.

3. High Court, Family Division: Francis J had initially found that the local authority had not proved that the injuries were inflicted and dismissed the care proceedings.