H-M (Children)

Different outcomes in parallel family and criminal proceedings do not, by themselves, justify reopening findings of fact. The court must examine the underlying evidence and ask whether there are solid grounds for believing that a rehearing may lead to a different finding. The decision is highly case-sensitive. An appellate court should intervene only for a material error of law or where the decision was not reasonably available. A judge who conducted the original fact-finding hearing is particularly well placed to compare the original evidence with evidence later given in criminal proceedings. A careful comparative assessment may properly conclude that apparently new material adds nothing significant, even where the criminal conviction concerns an issue not pursued in the family proceedings.

The mother appealed from the refusal of her application to reopen serious findings made in care proceedings concerning injuries to a child. The Family Court had found that the injuries were caused either by the mother or by her then boyfriend, KF, but could not identify which of them was responsible. In later criminal proceedings KF was convicted of causing the injuries, while the mother was acquitted of those counts but convicted of child cruelty.

The mother’s earlier appeal against the family fact-finding decision had been dismissed in T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25. She then renewed her application to reopen, relying principally on KF’s criminal-trial evidence, further medical evidence concerning a possible sexual element, information about KF’s whereabouts, and expert evidence challenging the reliability of bite-mark analysis. The central issue was whether that material provided solid grounds for revisiting the earlier findings.

1. Appeal dismissed. The mother had not shown a material error of law, or that the judge’s refusal to reopen was a conclusion that was not reasonably available.
2. The test at the first stage of an application to reopen is whether there are solid grounds for believing that the previous findings require revisiting. The existence of divergent family and criminal verdicts is not itself decisive. The court must analyse the evidence underlying the different outcomes.
3. The decision whether to reopen is highly case-sensitive. An appellate court should be slow to interfere with a reasoned decision and should do so only where an error is manifest. A judge who conducted the original fact-finding hearing has a distinctive advantage in assessing the strengths and weaknesses of the evidence and comparing it with later evidence. That assessment attracts a wide margin of consideration.
4. The judge was entitled to conclude that the further material did not provide solid grounds for reopening. The evidence concerning KF’s motivation, opportunity, credibility and deleted phone material did not materially alter the evidential picture. The further evidence concerning a possible sexual element had largely been available at the family hearing, although that issue had not been pursued as part of the local authority’s case. The further odontological evidence concerned a debate already explored at the fact-finding hearing and did not undermine the original findings.
5. Differences in admissibility, standard of proof and focus between family and criminal proceedings meant that incongruent outcomes did not establish that the underlying evidence was inconsistent. The use of a comparative table to organise extensive evidence did not make the assessment superficial.

• Court of Appeal (Civil Division): The present appeal was dismissed and the refusal to reopen was upheld.
• Family Court at Watford: HHJ Vavrecka refused the mother’s renewed application to reopen the findings of fact on 19 March 2021.
• Court of Appeal (Civil Division): The mother’s earlier appeal against the family fact-finding judgment was dismissed in T and J (Children) [2020] EWCA Civ 1344; [2021] 4 WLR 25.