E (A Child: Care Proceedings Fact Finding)

A procedural defect in care proceedings justifies appellate intervention only where it was serious and caused an unjust decision. Non-disclosure of material capable of undermining one party’s case may constitute a material irregularity, but the court must assess its practical effect on the fact-finding decision. A lie can support other evidence only where it is a deliberate untruth, concerns a significant issue, and has no innocent explanation; it cannot itself prove guilt. A Lucas direction is not required as a formulaic exercise in every family case. Fresh evidence should be admitted only where it would probably have an important influence on the result.

The mother appealed from a fact-finding judgment of the East London Family Court in care proceedings concerning E. On 28 March 2023, Her Honour Judge Thain found that the mother had inflicted non-accidental bruising on E on 30 July 2021. Permission to appeal was limited to whether the local authority’s failure to disclose viability assessments concerning the paternal grandmother, and the resulting inability to cross-examine the father and grandmother on inconsistencies in their accounts, rendered the finding unsafe or unjust. The Court of Appeal also considered whether later versions of the assessment should be admitted as fresh evidence. The central issue was whether the non-disclosure had any practical effect on the determination of the perpetrator.

1. Appeal dismissed. The local authority’s failure to disclose the first two viability assessments was a material irregularity because they potentially contained material capable of undermining the father’s case or supporting the mother’s case: [20]. Under Tanfern v Cameron-MacDonald [2000] EWCA Civ 3023 at [33], intervention required a serious irregularity which caused an unjust decision.
2. The Court of Appeal examined the fact-finding judgment and concluded that the judge’s findings about the injuries were based principally on the evidence and circumstances surrounding the critical periods at about 3.00 am and 9.00 am. General conclusions about the parties’ backgrounds played no significant part. The undisclosed material would have added, at most, negligible cross-examination and would not have altered the finding that the mother caused the injuries: [24]–[39].
3. The principles governing reliance on lies were drawn from A, B and C [2021] EWCA Civ 451 at [54]–[57], including the discussion of Re H-C (Children) [2016] EWCA Civ 136 at [99]–[100]. A lie must be shown by other evidence to be deliberate, relate to a significant issue, and lack an innocent explanation. It may support other evidence but cannot itself establish guilt. The alleged inconsistencies about the father’s childhood, the grandmother’s account, and her answer about social-services involvement did not materially affect credibility or the fact-finding exercise: [36]–[38].
4. VA2 was admitted because it was substantially contemporaneous with VA1 and added nothing material. VA3 was excluded because it would have had little or no influence on the outcome and did not satisfy the applicable test in Ladd v Marshall [1954] 1 WLR 1489: [40].

• Court of Appeal (Civil Division) — [2023] EWCA Civ 858. The court dismissed the mother’s appeal from the East London Family Court fact-finding judgment.
• East London Family Court — Her Honour Judge Thain, judgment dated 28 March 2023, citation not stated in the judgment. The judge found that the mother had caused E’s non-accidental injuries.