T and J (Children)

An inconsistent verdict in later criminal proceedings does not, by itself, establish that earlier findings in care proceedings were wrong or require an appellate court to overturn them. It may instead provide grounds for asking the Family Court to reopen its findings.

A court has a broad, fact-sensitive discretion whether to draw an adverse inference when a person refuses to answer questions. Advice from a criminal lawyer may be relevant, notwithstanding the compulsion and limited protection afforded by section 98 of the Children Act 1989.

Fresh evidence on appeal is governed by the overriding objective and the Ladd v Marshall criteria, applied with appropriate flexibility in children’s cases.

A mother appealed against findings made by HH Judge Vavrecka in care proceedings concerning her two sons. The judge found that the younger child had sustained numerous inflicted injuries and that the mother or her partner, KF, was responsible for several of them. KF had refused to answer questions at the fact-finding hearing.

After those findings, a jury convicted KF of offences concerning the injuries, acquitted the mother of the corresponding offences, and convicted her of cruelty. The mother argued that the family findings were incompatible with the criminal verdicts, that adverse inferences should have been drawn against KF, and that the judge had inadequately assessed his evidence. She also sought to introduce further odontological evidence.

The central issues were whether those matters demonstrated appellate error and whether the further expert material should be admitted.

1. Appeal dismissed unanimously. The later criminal verdicts did not demonstrate that the Family Court’s findings were wrong. An inconsistent verdict, or the fact that the criminal court heard different or more comprehensive evidence, is insufficient by itself to require an appellate court to overturn earlier care findings. Such matters may, however, justify an application to reopen the fact-finding hearing.

2. The application to admit Professor Pretty’s odontological report and associated criminal-trial material was refused. The overriding objective was the starting point, while Sharab v Al-Saud [2009] EWCA Civ 353 confirmed the continuing persuasive importance of Ladd v Marshall [1954] 1 WLR 1489. Its criteria are applied less strictly in children’s cases. The trial judge already understood the limitations of bite-mark analysis, the competing scientific concerns were known and could have been explored in cross-examination, and the proposed evidence would not have had an important influence on the outcome.

3. A refusal to answer questions does not oblige a court to draw an adverse inference. The decision is discretionary and depends on the particular circumstances. Advice from a criminal lawyer was relevant because section 98(2) of the Children Act 1989 prevents statements in care proceedings from being admitted against their maker in criminal proceedings, but does not prevent their use during a police investigation.

   The trial judge considered KF’s silence, reduced the weight given to his written account and treated the unanswered questions as material to keeping him within the pool of possible perpetrators. That evaluation, together with the judge’s assessment of the mother’s credibility, fell within his discretion.

4. The judge’s assessment of KF’s written evidence disclosed no basis for appellate interference. Any insufficiency in the original reasons concerning the alleged shoe imprint had been rectified by the judge’s later clarification.

5. Obiter: A properly constituted application to reopen findings follows three stages: deciding whether solid grounds justify revisiting the findings; determining the scope of the investigation and evidence; and conducting any rehearing. The significance of further evidence is generally better assessed by the trial court. The mother remained free to make a further application on notice, identifying the evidence and other material relied upon.

1. Court of Appeal (Civil Division): Dismissed the mother’s appeal and refused her application to admit fresh odontological evidence: [2020] EWCA Civ 1344. The court observed that she could make a properly constituted further application to reopen the findings.

2. Family Court at Watford: HH Judge Vavrecka made findings in care proceedings that the child’s injuries had been inflicted and that the mother was responsible for some injuries or remained within the pool of possible perpetrators for others. The judge subsequently refused oral applications to reopen the findings after the criminal trial.