Re N (A Child)

The Court of Appeal allowed the mother's appeal against the trial judge's refusal to order a rehearing of a fact-finding hearing. The court held that the mother, who was shown by subsequent psychological and intermediary reports to have a markedly reduced verbal ability and other cognitive vulnerabilities, should have been identified as a vulnerable person under FPR 2010 Part 3A and PD3AA and provided with an Intermediary and ground rules before giving evidence. The absence of those special measures meant the mother was denied a fair trial under Article 6 and CPR 52.21(3), and there were sufficient grounds to remit the matter for rehearing so that the mother can give her best evidence with appropriate adaptations.

Background and procedural posture:

• The fact-finding hearing before HHJ Raeside (15 March 2019) concerned the cause of multiple bruises to a little girl, S, and the identity of any perpetrator(s). The judge found some bruises to be non-accidental and made an 'uncertain perpetrators' finding that either the mother or the mother's partner (PE) had caused the injuries.
• The mother subsequently gave birth to a second child, L; findings in S's proceedings had direct relevance to L's separate care proceedings.

The application and issues:

• The mother applied for either permission to appeal the fact-finding or for a rehearing in light of fresh evidence: a psychological report by Dr Shaun Parsons and intermediary assessments by Ms Lucy Turner and Ms Jean Mattalia (and an ISW report).
• The judge refused to reopen the findings and refused permission to appeal; renewed permission to appeal was granted by Peter Jackson LJ.
• The principal issues before the Court of Appeal were (i) whether the absence of an Intermediary and failure to follow Part 3A/PD3AA procedures rendered the fact-finding trial unfair such that the findings could not stand (Ground 1), and (ii) alternatively whether the fresh evidence warranted a direct appeal against the findings (Ground 2).

Court's reasoning and disposition:

• The Court accepted the psychological and intermediary evidence identifying the mother as requiring an Intermediary and showing markedly limited verbal ability such that her capacity to understand and give evidence was likely to be diminished.
• The court reviewed the statutory and practice direction duties in FPR 2010 Part 3A and PD3AA (rules 3A.4, 3A.5, r.3A.9 and PD3AA 1.3), the requirement for ground rules hearings and the role of intermediaries and toolkits, and the domestic and Article 6 jurisprudence on fair trial and vulnerable witnesses.
• The court concluded there had been a fundamental breach of the mother's Article 6 rights because no participation directions, no ground rules hearing and no Intermediary were provided; the trial judge's case management interventions were not sufficient to ensure a fair hearing for this vulnerable witness. The unfairness was material because the fact-finding hearing was the pivotal hearing that would determine future welfare decisions for both children.
• The appeal was allowed on Ground 1 and the case was remitted for rehearing so that appropriate measures, including appointment of an Intermediary and ground rules, can be put in place before further fact-finding.

Appeal allowed and the case remitted for rehearing. Rationale: subsequent psychological and intermediary reports established the mother as a vulnerable witness under FPR 2010 Part 3A/PD3AA; absence of an Intermediary and the Part 3A procedure at the crucial fact-finding hearing meant the mother was denied a fair trial under Article 6 and CPR 52.21(3); therefore the findings could not stand and a rehearing is required so that the mother can give her best evidence with appropriate special measures.

Initial fact-finding hearing and judgment by HHJ Raeside, Guildford Family Court (GU18C00195) concluded 15 March 2019; judge refused application to reopen findings and refused permission to appeal; renewed permission to appeal granted by Peter Jackson LJ; appeal heard in the Court of Appeal (Civil Division) which allowed the appeal and remitted the case for rehearing. (See [2019] EWCA Civ 1997.)