The Case Facts:
The case of Re E (Children) (Reopening Findings of Fact) [2019] EWCA Civ 1447 concerns the appeal by a Mother of three children, now aged 9, 4 and 2. In January 2018, the children were removed from their Mother after the youngest child, aged 10 months at the time, was found to have cigarette burns on her arm. The Mother, a smoker, gave differing accounts of how the burns occurred.
The Mothers accounts included: that the injuries were caused when her daughter was in the care of the Grandmother, that the injuries were caused when a caravan door was blown into her arm, causing her to drop the cigarette, and that the injuries were caused by her eldest child running into her. When the matter went to trial, the Mother stated her earlier accounts were false and the Judge did not accept the last account either. The evidence suggested there had been at least two non-accidental applications of heat to the skin.
Parallel to this, there was a criminal investigation. The Police consulted a forensic burns consultant and forensic plastic surgeon. In October 2018, a substantial report was produced. This report stated that the Mother’s explanation for accidentally burning her child was plausible. In consequence, the Mother appealed the finding that she had burnt her child non-accidentally.
The Approach:
In care proceedings, facts establishing the threshold are a precondition to making an Order in Court. The findings of fact can be highly important to a welfare decision associated with the child. If an incorrect finding is made, then this can have lasting consequences for those implicated within the case. Consequently, the Court must ensure that unjust findings are not allowed to stand. However, there are limits on the extent to which the Court will allow findings of fact to be revisited. Under Section 31F(6) of the Matrimonial and Family Proceedings Act 1984, the Family Court does have the statutory power to review its finding of fact.
The main question in this case, was whether the Mother was to appeal the Order or to apply to the trial court. Moreover, if both options were available to the Mother, which was the better option?
As explained by Jackson LJ, both options of appeal and applying to the trial court were possible. However, the preferred route would be the latter. This is because a Trial Judge is in a better position to assess the significance of further evidence. The matter may be dealt with more quickly and with less expense. An appeal would be appropriate if the judge fell into error regardless of the further evidence.
The Result:
Previous guidance suggested that where a person wishes to challenge a finding of fact, they must do so by appealing. Sometimes, this remains the right course of action if, as mentioned above, the Judge has fell into error. The Mother chose to appeal the findings of fact made against her, on the basis of the new evidence that came to light. Clarifying the procedural options, Jackson LJ dismissed the appeal and referred the case to the trial judge to decide whether to reopen the findings. The Court of Appeal made it clear that in cases where new evidence has come to light, these cases should be put to the Judge who made the original decision, rather than appealing.