H-M (Children) – Family Law Week case summary

May 31, 2021

The Court of Appeal dismissed the mother’s second appeal relating to a fact-finding hearing. The criminal proceedings and the family proceedings had reached incongruent outcomes, in that the mother was in the family court’s pool of perpetrators but was exonerated of causing injury in the criminal court. Jackson LJ’s judgment upheld the lower court’s decision to refuse her application to reopen, and also helpfully sets out some differences between a reopening and an appeal of a fact find, as well as the proper approach when criminal and family court outcomes are incongruent.

Background

This was the mother’s second appeal relating to a fact-finding in a non-accidental injuries (NAI) case. The first had been an unsuccessful appeal against the findings of fact: T and J (Children) [2020] EWCA Civ 1344. She then applied to reopen the fact-find and when that application was refused, she appealed that decision. This appeal is therefore the second relating to this fact-finding hearing.

The relevant injuries, to her then one-year-old son, took place in June and July 2018. Judgment (following a three-week fact-finding hearing) by His Honour Judge Vavrecka was given in summary form in August 2019, then in a full judgment in November 2019. It concluded that both the mother and her then-boyfriend were in the pool of perpetrators. But in October 2019, between the fact-finding hearing and the full judgment, the criminal trial had concluded, finding only the boyfriend guilty: “the mother was completely exonerated as either a principal or secondary actor in the abuse perpetrated on the boy” (para 5).

The mother’s first appeal, against the findings of fact, was heard and dismissed in October 2020: T and J above. The mother then applied to reopen the findings of fact on the basis of new evidence, and her application was heard by HHJ Vavrecka over two days and refused in March 2021. This second appeal was against HHJ Vavrecka’s decision to refuse her application; it was granted permission to appeal and was heard 11 May 2021.

Read the full summary on Family Law Week.