A LOCAL AUTHORITY v Mother & Ors

This application asks the Court to re-open a fact-finding judgment made by HHJ Backhouse on 14 December 2018. This judgment considers Stage 1 of the three-stage test identified by the Court of Appeal in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, namely whether the Court will permit any reconsideration of the earlier findings.

On 14 December 2018 HHJ Backhouse gave judgment on the local authority’s application for a care order in respect of three children: A, a boy then aged 2 years 9 months; B, a girl then aged 23 months; and C, a boy then aged 11 months. The local authority issued proceedings on 3 May 2018 after C was found to have suffered subdural and retinal haemorrhages (“SDH/RH”) which were considered to be likely inflicted injuries. The judgment was given at the conclusion of a nine-day fact finding hearing at which the principal findings sought included:

The parents denied the main allegations, although the father admitted to cannabis misuse.

HHJ Backhouse found that the injuries to C were inflicted injuries but could not determine which of the parents had inflicted them (the pool of perpetrator finding). She rejected the parents’ case that the injuries had been inadvertently caused by bumping C down the stairs of their flat in a buggy or by a toy being thrown by another child. She was unable to determine who had caused the injuries and so both parents were in the pool of possible perpetrators. She did not conclude that either knew what the other had done and was covering up.

As a consequence of the findings, care and placement orders were made in respect of the three children. A and B have been placed with prospective adopters since 5 September 2019. C was placed with his prospective adopters in the summer of 2019 following the fact-finding judgment. The care proceedings concerning the older three children concluded with care and placement orders made by HHJ Backhouse on 12 June 2019. The parents had a further child, D in late 2019. Following her birth, she was placed in a foster to adopt placement. Care proceedings in relation to D commenced that day. All the children are, according to the Guardian, doing well in their placements.

An application to re-open the fact-finding judgment of HHJ Backhouse dated 14 December 2018 was first made by the mother on 13 October 2020 [B97-108]. That application was dismissed by HHJ Cove on 3 November 2020 [B140/§5], on the basis that neither the report of Dr Mann nor the Communicourt assessment undertaken at court on 16 November 2018 had recommended that an intermediary was required.

Although no fresh application was made, in a skeleton argument submitted in the proceedings relating to D on 17 June 2021 the mother argued that she should be allowed to challenge the findings made by HHJ Backhouse in the context of the final hearing in respect of D. On 28 June 2021, HHJ Cove adjourned the final hearing to allow the parties to obtain transcripts of the evidence given at the hearing before HHJ Backhouse and she consolidated the application for a care order in respect of D with the adoption applications concerning the three older children.

For reasons which I shall not go into it has taken nearly 10 months to reach the point of a hearing of the application. Self-evidently during this period, all involved have been treading water, and neither the adoption applications in respect of the older children or the care proceedings in respect of D have been able to progress to a conclusion. Although no formal application has been issued by the mother nor by the father, the proceedings have been timetabled on the basis that there are live applications by both to set aside the findings.

Ultimately, I have concluded that the mother and father’s application to relitigate the finding of fact in relation to C’s SDH/RH within the proceedings relating to D should be allowed. In the event of a change in the outcome, whether that is in relation to the causation of the SDH/RH or, if inflicted, the identity of the perpetrator, that will be relevant to whether the threshold has been reached and the outcome in relation to D, and would also amount to a change of circumstances in relation to the parents’ application for leave to oppose the adoption of the older children.

Although I have only granted the mother and father’s ‘application’ in relation to the ‘fair hearing’ issues raised, the effect of that, it seems to me, is to require a rehearing of the case in relation to both parents and causation.

My decision in relation to each of the parents ‘applications’ and my brief reasons are as follows:

The precise nature of the rehearing and the extent to which the medical evidence itself is relitigated is not determined in this judgment as I do not consider it to be properly determinable given the absence of any information as to whether the experts are all still available to give evidence as experts and the timescales for them if they are. I refuse the mother’s application for the instruction of fresh experts as I do not consider it necessary to enable me to determine these proceedings justly. To the extent that medical evidence is relitigated, it will be done on the basis of the current expert evidence, either based on the transcripts and existing reports or supplemented by oral evidence if that is possible and proportionate in terms of the timeframes.

Although I have set out my reasoning more fully later in this judgment, I have not been able to consider it in greater depth or at greater length or to explore broader issues relating to the circumstances in which applications to reopen findings of fact might arise because the time estimate of two days was almost entirely consumed with reading and hearing submissions. For reasons that I have not been able to examine, the time estimate which the application was given when it was listed previously was reduced from three days to two days and thus this judgment has felt the squeeze which that resulted in. However, having had the benefit of extensive oral submissions, extensive reading and subsequently a fair amount of thinking time I am satisfied that the conclusions I have reached are the proper ones but it has not been possible due to the constraints of time to explain in writing in glorious technicolour all of the arguments laid before me, all of the jurisprudence which bears on the application and the full process of reasoning by which I have come to accept or reject the parties respective arguments. I have considered reserving my judgment for a lengthier period of time in order to provide a more detailed judgment, but in reality, given the other commitments I have this term it would not be possible to undertake that process before the Whitsun vacation and I do not consider that the further delay that would result in to be justified given the length of time these children, the parties and others affected (including the proposed adopters) have already been waiting for progress on this front.

A further directions hearing at which we will consider Stage 2 and 3 will be required.

I have had the benefit of detailed Skeleton Arguments and Position Statements on behalf of the parties, all of whom were represented by advocates who did not appear at the hearing before HHJ Backhouse. I have also had the benefit of hearing concise submissions on behalf of them during the course of the hearing. The following I hope captures the essential points made in support of their respective positions. Both the parents and indeed the Guardian emphasise the very serious consequences of the adverse finding in terms of the impact upon the family, including the separation of the sibling group and the more than lifelong consequences for the siblings and their descendants of a decision to adopt.

The Mother

The Father

Local Authority

The Guardian

I have been greatly assisted by the written documents provided by the parties and the bundle of authorities, and by their focused submissions on the aspect of the test which was relevant in these circumstances. In relation to the bundle of authorities, it is unfortunate that some of the cases were not the authorised reports and thus did not contain head notes, summaries of arguments or lists of authorities considered and I can only reiterate to all concerned, as many others have before me, the importance of complying with the Practice Direction on citation of authorities and using the most authoritative, officially reported version of a case.

The slightly unusual dimension on the effect of this case was that the issue of the vulnerability of the parties had been raised prior to the fact-finding hearing and indeed the court had grappled with those and made what on the face of it appeared to be proper directions in relation to the obtaining of a cognitive assessment and later an intermediary assessment. Those resulted in some Ground Rules being identified in the order of 16 November 2018, which were to be applied during the fact-finding hearing. In her judgment, HHJ Backhouse states explicitly that those Ground Rules were applied during the hearing. Thus, the court in this case is not confronted with a situation where a hearing had been conducted in ignorance of the possible vulnerability of a party, but rather where a vulnerability has been identified and apparently addressed.

That raises the question of how the court should approach the application to reopen the resulting findings of fact. The mother and father approached the application on the basis that the later assessments were of better quality than the earlier assessments and that the asserted deficiencies in those earlier assessments should lead the court to conclude that the hearing was vitiated as a consequence. Given that neither the psychologist’s report of Dr Radcliffe, or the intermediary assessment of Ms Smith or Ms Turner purported to critique the earlier assessments and given that there was no suggestion that either the experts or the intermediaries should be called so that the court could examine which was the more reliable, it did not seem to me that it was possible to approach the case on the basis that I should now prefer the later assessments and conclude that the arrangements made on the basis of the earlier assessments were thereby demonstrated to be inadequate. I ultimately reach the conclusion that the later assessments should be regarded as fresh evidence and a Ladd v Marshall-type approach be adopted where one looks at whether they could have been available earlier, whether they are credible, and whether had they been available they would have been likely to have had an impact not on the ultimate outcome of the hearing, but on the decision-making in relation to Ground Rules.

The overarching test for applications to reopen findings of fact was considered by the Court of Appeal in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447. The absence of any strict rule of res judicata or issue estoppel was noted. In that case, Peter Jackson LJ, with whom Moylan LJ and Floyd LJ agreed, reviewed the authorities to date and concluded that:

“49.

These decisions establish that there are three stages. First, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.”

They identified the possible routes which could be adopted to seek to re-open findings and preferred applications to the trial court rather than to an appellate court because the trial court would generally be better placed to consider the impact of fresh evidence. That aspect in itself lends support to the contention that a pre-condition to re-opening applications is a change in the factual or evidential matrix considered by the judge. General criticisms of the approach taken by the court or legal teams are highly unlikely to be contemplated within this.

Peter Jackson LJ addressed the approach of the court to appeals based on fresh evidence as follows:

“20.

Further evidence must therefore pass through the gateway of CPR r52.21(2). When overseeing the gateway, the court seeks to give effect to the overriding objective of doing justice, and the pre-CPR decision of Ladd v Marshall [1954] 1 WLR 1489, (1954) FLR Rep 422 remains powerful persuasive authority: see Sharab v Al-Saud [2009] EWCA Civ 353, [2009] 2 Lloyd’s Rep 160 and generally the discussion in the White Book 2019 (Sweet & Maxwell), at 52.21.3.

21.

Ladd v Marshall [1954] 1 WLR 1489, (1954) FLR Rep 422, at 1491 and 423–424 respectively, familiarly provides that:

‘In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’

22.

The durability of Ladd v Marshall shows that it encompasses most factors relevant to applications that are likely to arise in practice but as Hale LJ noted in Hertfordshire Investments Ltd v Bubb and Another [2000] EWCA Civ 3013, [2000] 1 WLR 2318, at para [37], the criteria are not rules but principles to be looked at with considerable care.

23.

It has been said that the Ladd v Marshall analysis is generally accepted as being less strictly applied in cases relating to children: Webster v Norfolk County Council and the Children (By their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, per Wall LJ, at para [135]. At para [138] he continued: ‘The rationale for the relaxation of the rule in children’s cases is explained by Waite LJ in Re S (Discharge of Care Order) [1995] 2 FLR 639, at 646, where he says:

“The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined”.

24.

In Re G (A Child) [2014] EWCA Civ 1365 (unreported) 22 October 2014 (to which I have already referred) Macur LJ made this observation about Webster:

‘[16] For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in “children’s cases”. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.’

25.

A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.”

The factors identified as relevant were:

“There are no doubt many factors to be borne in mind, among them the following.

(1)

The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation – the resources of the court and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 947,“must be applied so as to work justice and not injustice”.

(2)

The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significant.

(3)

Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusion upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone. The court will want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way; (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”

Having noted that any application to re-open would need first of all to identify the legal significance of doing so, the Court of Appeal in respect of the first stage (referred to in the authorities as ‘Stage 1’) continued that:

“50.

… A court faced with an application to reopen a previous finding of fact should approach matters in this way:

(1)

It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly based welfare decisions on the other.

(2)

It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3)

‘Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial’. There must be solid grounds for believing that the earlier findings require revisiting.”

In RL v Nottinghamshire CC and Another [2022] EWFC 13, Mostyn J provided further guidance on the interpretation of the Stage 1 test as follows:

“43.

It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted comfortably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before. Such an interpretation would also be consistent with the powerful reasoning of Waite LJ referred to above where he said that the court will in the “general run of children’s cases” rigorously ensure that no-one is allowed to litigate afresh issues that have already been determined. It would also chime with the alternative rule for inquisitorial proceedings proposed by Diplock LJ referred to above.”

I have not been taken to, nor otherwise found, any case directly on the point of how to approach an application to re-open where there has been a prior vulnerable party assessment which has led to Ground Rules which are subsequently said to have been inadequate to provide a fair hearing by reason of later assessments. Rather, the cases reported have involved situations where the vulnerability had not been identified before the hearing and/or where it has been argued that the trial has been rendered unfair by the court’s treatment (whether by act or omission) of a vulnerable party or witness.

The two key cases, both of which were provided in the bundle of authorities, are N (A Child) [2019] EWCA Civ 1997 and the recent decision in S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8.

In N (A Child) [2019] EWCA Civ 1997, HHJ Raeside conducted a four-day fact finding hearing and made findings that some bruising was caused non-accidentally by the mother (§§3-5). Following judgment, the learned judge made directions in preparation for the welfare hearing including preparation of a full psychological assessment for mother (§8). Mother was subsequently assessed by Dr Parsons as having an IQ of 70 with “a particular weakness in terms of her verbal ability”, who also “highlighted the danger of the reliability of [the mother’s] evidence” (§§9-11). An Intermediary assessment subsequently concluded that the mother needed an Intermediary, but HHJ Raeside refused an application to re-open the findings of fact (§16). The Court of Appeal recorded that HHJ Raeside:

“24.

…Dismissed a submission that, where it was subsequently discovered that a party should have been provided with special measures, the hearing should be set aside and a re-hearing directed. That, she held, was too dogmatic an approach; the test, she said, is that in Re B and Re ZZ, the court needs to have real reason to believe that doubt is cast on the accuracy of the findings made.”

The Court of Appeal, considering an appeal against this determination, noted that:

“33.

Save for Re M (A child) [2012] EWCA Civ 1905 (discussed below), the reported cases that were brought to our attention concerned in each case, situations where the party seeking to reopen the findings of fact relied upon fresh evidence that went directly to the findings. In Re E itself, the mother sought to adduce fresh expert medical evidence that could potentially provide an innocent explanation for cigarette burns on her child. Another common situation is where there has been an acquittal in criminal proceedings of a party that had been held by the family court to be the perpetrator of non-accidental injuries. A third category if found where, following the fact-finding hearing, one party wishes to change the account he or she gave on paper and to the court in the fact-finding trial.

34.

In cases where a party seeks to adduce evidence that they submit will go directly to the heart of the findings, the court will consider all relevant matters highlighted at [31] above when carrying out the balancing exercise as rehearsed by Peter Jackson LJ. However, they will “above all” want to consider whether a rehearing is likely to result in different findings and there must be solid grounds for believing that to be the case.

35.

Understandably, in the present appeal, Mr Shaw on behalf of the Local Authority, and Ms Chalk on behalf of the Guardian, placed heavy emphasis upon this. Each stated that the outcome of the case would not have different, even had the mother had the benefit of the intermediary.”

The Court continued by recording the submissions on behalf of the mother that:

“37.

… The impact of the mother not having the assistance of an Intermediary is, Ms Porter says, that the court was unable to undertake the essential assessment of the mother as a witness. This, she says, is because the judge was deprived of the opportunity properly to consider the mother’s credibility, away form concerns as to her cognitive ability, her understanding of the evidence, and the questions put to her. The mother’s inability fully to engage in the proceedings meant that she was unable to have a fair hearing….”

The stark circumstances of Re M were noted by the Court, in which “psychological and intermediary reports were available to the court before trial, and those representing the vulnerable parent had applied for an adjournment in order for special measures, including the appointment of an intermediary to be put in place” (§38). It was further opined that “a wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair” (§51).

In concluding that the appeal should succeed and be remitted for rehearing, the learned judge stated that:

“60.

In my judgment, it would go too far to say that a rehearing is inevitable in all cases where there has been a failure to identify a party as vulnerable, with the consequence that no Ground Rules have been put in place in preparation for their giving evidence and no Intermediary or other special measures provided for their assistance, but the necessity for there to be a fair trial must be at the forefront of the judge’s mind. In such a case, whether there should be a retrial must depend upon all the circumstances of the case, not only, or principally, upon the likely outcome of a rehearing. …

…

62.

One knows not whether Mr Shaw is correct in his assertion that the outcome will ultimately be the same, but in the circumstances of this case, it matters not. This mother was denied the very protection which has been put in place to ensure that she, as a woman with learning difficulties, has a fair trial. The stakes could not be higher; she faces the permanent loss of her two infant children. In my judgment, the fact that the mother will have the assistance she requires for the balance of the proceedings cannot make up for the fact that she was without that help in the crucial hearing, the findings from which will form the basis for all future welfare decision in respect of these two children.”

A similar scenario arose in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8, albeit in the context of an appeal against findings of fact made in February 2021 by the trial judge, including against A (who was an intervenor at the trial). One ground of appeal was based on procedural irregularity in the following terms:

“22.

… The appellant has cognitive difficulties which were unidentified. Dr Josling [a forensic psychologist] has assessed that the appellant may be assisted by an intermediary and an appointment with Communicourt for assessment is due to take place on 18 November 2021. The court made findings against the appellant in proceedings where the appellant’s cognitive issues were not considered, or adjustments made to ensure her fair participation. The findings are therefore unsafe.”

The Court of Appeal recorded the submission on behalf of A that they “should have had an intermediary with her in court and that, prior to the court hearing, there should have been a Ground Rules hearing where submissions could be made as to the best way to receive her evidence” (§27), and the local authority’s opposition that no one had expressed concerns at the time and “A was able to give detailed instructions to her solicitors and to participate fully in the hearing” (§28).

After addressing the provisions in Part 3A FPR 2010 and citing inter alia their “fundamental importance to the administration of family justice” (§38), the Court of Appeal noted that: “it does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust” (§42).

The Court of Appeal subsequently concluded that:

“44.

Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.”

The circumstances of this case are such that the criteria identified in the authorities of needing to demonstrate that the finding has actual or potential legal significance is unquestionably demonstrated. In respect of the three children who are already subject to care and placement orders, finding that the injury was not inflicted or a change in the identification of both parents as being in the pool of perpetrators would fundamentally alter the legal landscape. Absent an inflicted injury the threshold for state intervention might not be met and identification of one parent as the perpetrator might result in the non-perpetrator being in a position to care for all three children; either outcome might require the care and placement orders to be discharged. In respect of D the threshold which is currently based on the contention that each of the parents presents an unquantifiable risk by reason of they being in the pool of perpetrators for having inflicted serious injury on C would either evaporate if the injury was not inflicted or would focus on the perpetrating parent with the non-perpetrating parent being an obvious potential carer.

In Re E the Court of Appeal seems to me to make tolerably clear that applications of this nature should not be unduly constrained by procedural rules and that the most effective vehicle for determining them would be by application back to the judge who heard the original hearing rather than by appeal. Whether the application is pursued under Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 or whether it is pursued as an issued application under Part 18 of the FPR 2010, or whether the court permits the application to be pursued simply by case management directions, what ultimately matters is the substance of the application. If the court is satisfied that there is substance to the application, then the court should case manage it to a determination. Perhaps self-evidently, an issued application which identifies expressly the grounds on which it is made, the fresh evidence which is relied upon or the change in circumstances will be more helpful to the court and the parties in focusing the steps which need to be taken to bring the application to a conclusion.

In this case, the route by which the application has reached me is not in compliance with those routes but that does not detract from the need to address the substance of it. The initial application to re-open the fact finding in respect of the older children appears to have been made by the mother within the proceedings relating to D, and was based upon there having been no intermediary appointed for her within those earlier proceedings, together with an application by the father to reopen the fact finding based on the absence of genetic testing (I'm unsure of the precise nature of this). These applications were the subject of case management orders on 20^th September 2020. On 3 November 2020, HHJ Cove further adjourned the father's application to reopen and dismissed the mother's application to reopen apparently on the basis that she had had an intermediary assessment in the earlier proceedings. I was informed by Mr Feehan that this was dealt with in an abbreviated hearing with the mother being represented by her solicitor. By 6 February 2021, a geneticist’s report had been obtained, which concluded there was no suggestion of a genetic propensity towards C incurring subdural haematomas or retinal haemorrhages. A final hearing of the care and placement applications in respect of D was due to occur on 28 June 2021 with a time estimate of five days. On 17 June 2021 the mother’s team filed a skeleton argument drafted by Mr Storey QC and Mr Chippeck in which they submitted that because the mother denied harming C and because the findings of HHJ Backhouse that she was in the pool of perpetrators were neither technically res judicata nor a finding that on the balance of probabilities she had harmed a child, the threshold in relation to D would have to be established by the calling of evidence. The skeleton identified the basis of the challenge to the fact finding as being (a) the failure to consider properly the possibility of the injuries having been caused by C being frequently bumped down the stairs in his buggy, (b) having regard to the fact the Court of Appeal and High Court had accepted expert evidence from Dr Anslow (a consultant paediatric radiologist) that a bumpy buggy ride might cause rebleeding from a birth-related subdural haemorrhage in particular when viewed against the expert evidence given that such a cause was near to impossible and (c) that the history of the case generally indicated a lack of proper enquiry. It is of course the case that in the Henderson appeals in which Dr Anslow gave evidence on behalf of the defendant, Mr Butler, that there was a dispute between Dr Anslow and Dr Stoodley. The Court of Appeal decision that the judge erred in considering a submission of no case to answer, was based more upon the ophthalmalogical evidence and they noted that it was open to the jury to reject Dr Anslow's evidence. In Sutton v Gray and Others, Hogg J does appear to have accepted that a bumpy buggy ride could constitute a sufficient trauma to trigger a re-bleed and that a re-bleed could be caused by lesser force than a bleed de novo.

The application to reopen was then adjourned for a three-day hearing on 27 October 2021. At some point adoption applications were also made in respect of the older children and the parents. Applications for leave to oppose adoption were also listed for consideration at the hearing on 27 October 2021. The basis of the application for leave to oppose appears to be based at least in part, if not wholly, on the contention that the setting aside of the factual findings would amount to a change of circumstances within the Adoption Act 2002. Subsequently the father’s case developed as the cognitive and intermediary assessments came in and the transcripts were received. A further listing in March before HHJ Robinson was vacated and the matter was listed before me for directions in April and for determination in May.

Although the submissions largely presented the application to reopen on the basis of asserted deficiencies in the medical evidence and asserted deficiencies in the fairness of the hearing as distinct arguments there were aspects of the medical arguments which had their source in the way in which the parents had been engaged in the process of preparation for the hearing, listening to and giving evidence. For the purposes of this judgment, it seems to me that it is more helpful to identify the argument separately because there is a distinction in the test to be applied to the medical as opposed to the fair hearing arguments. In relation to the medical arguments the authorities support the full reopening as incorporating an evidential element which causes the court to conclude that there are solid grounds for believing that the result would be different. In relation to ‘fair hearing’ arguments the authorities require far less of a demonstrable causal nexus (perhaps not at all if the breach of Article 6 is sufficiently grave) between the failure of process and the outcome of the case.

In the course of their submissions. Mr Feehan and Professor Delahunty identified a number of points which they submitted had not been properly explored during the expert evidence heard in 2018. These included (but I do not think this is exhaustive) the following:

Whilst I have considerable respect for the expertise of Mr Feehan and Professor Delahunty their criticisms of the non-exploration of aspects of the medical evidence, whether based on Dr Anslow’s earlier evidence or otherwise, is materially different to expert evidence being put before the court from a subsequently instructed consultant paediatric neuroradiologist or other relevant expert identifying flaws in the approach of previously instructed experts or subsequent developments in medical science, which place a different perspective on evidence given earlier. Alternatively, the emergence in the medical literature of reliable material which place the evidence given in the 2018 proceedings in a different perspective, having regard to subsequent research or developments in medical science might also conceivably provide a sufficient basis for the conclusion that solid grounds for believing that a different result might be reached. However, it seems to me to be hard to say that counsel’s criticism of the approach taken to the medical evidence during the initial fact finding can amount to a solid ground for believing that the result may be different. During the course of submissions on behalf of the Guardian, Ms Howe submitted that her experience of similar cases was that rebleeding was not consistent with the medical findings in this case.

The mother’s submissions in the skeleton argument as to the effect of Dr Anslow’s evidence in R v Henderson and Sutton v Gray and Others (No 1) is, it seems to me, in any event over-stated as Dr Anslow’s evidence was not central to the Court of Appeal’s decision in Henderson and in Sutton v Gray and Others (No 1) Hogg J identified the evidence as being potentially relevant to the occurrence of a re-bleed and the force required to cause that. Professor Stivaros says that there is nowhere in the world literature where anybody has identified multi-location, subdural bleeding as a result of a child being bumped up and down within a buggy going up and down stairs or otherwise. This does not appear to be in conflict with Dr Anslow's evidence as far as I understand it.

It is clear from the experts’ reports that the question of the subdural haemorrhage or the retinal haemorrhage potentially being related to birth were on the expert’s radar. The transcripts show that the issue of rebleeding of birth -related SDH was raised (see, for instance, M56 and M58), as was the mechanism (M60, M62), with Mr Richards by both counsel for M and F (M78,) on birth-related SDH (M79). There was more emphasis on possible clotting deficiency as the Factor 13 test had not been conducted.

Overall, the transcripts show that mechanisms were explored; whether they were as vigorously explored as the current legal teams might have done is not the point. I do not conclude that the transcripts demonstrate that the approach taken was outside the range of reasonable approaches which might have been taken at the time. Although we have not explored the test, which might govern the court reopening a hearing due to the performance of the lawyers, it does not seem to me that we are anywhere close to the realms at which unfairness due to inadequate legal representation is close to engaged. The references to the possibility of either subdural rebleed or retinal re-bleeds and whether a lesser degree of force might cause such bleeds and whether they were relevant considerations in this case existed. The experts in their reports all identified the issue of birth-related SDH/RH and some referred to the literature on the issue. Although no expert meeting took place, and the issue of re-bleeding was not explicitly referred to with these experts it seems more probable that they did not consider it a viable possibility rather than four experts having each independently over-looked an important possibility which on the parents’ case would have been within the range of opinions that they might have been expected to give.

This is not a single expert case, but a constellation case and the judgment does not support an argument that there was overreliance on one expert. Each of the experts gave their own opinion on the likely cause of the SDH/RH and the likelihood of the parents’ two possible explanations.

Overall whilst I accept that there are aspects of the medical evidence which might have been more fully explored, I do not consider that the material which relates to Dr Anslow provides a solid ground for believing that a different result might emerge. Ultimately, Dr Anslow is one expert whose opinion in relation to a broadly similar mechanism being capable of causing a rebleeding of a birth-related subdural haemorrhage is simply that. The court in this case had the benefit of evidence from four eminent experts from different disciplines who had applied their expertise to the particular facts of this case. It does not seem to me that the nature of Dr Anslow’s evidence in another case several years ago constitutes a solid ground for believing the result of a re-hearing would be different. Nor do the submissions of counsel as to their view of the importance of various aspects of medical enquiry amount to solid grounds. Nor does my reading of the transcripts of the medical evidence itself and the issues which were explored provide any basis for saying that there are solid grounds for believing that the decision as to causation should be re-opened on those grounds.

In relation to the fair process issues, as I have already said in the summary above I am satisfied that the outcome is different although I do not accept that all the limbs of the parents’ cases are established.

The decision of HHJ Cove was fairly and squarely on the issue of whether Ms Smith’s intermediary report demonstrated the fact-finding hearing was procedurally unfair. No transcript of the decision was available, only the order. It does not appear that that decision was the subject of any appeal, and so the current application is in essence in part an attempt to re-litigate an issue already determined with only limited further material different to that which was considered by HHJ Cove. The heart of the additional argument is that the transcript suggests the mother did not understand aspects of the questioning including the concept of the pool of perpetrators or the local authority case that if it was not the father it was her, that inadequate breaks were implemented in her evidence and during the evidence of others. Although Mr Feehan may be right that technically the court retains an unlimited discretion to reconsider applications which have already been made and determined, the circumstances in which the court will do so are limited and usually involve a material change in circumstances or fresh evidence which calls into question the reliability of the original decision. It is not open to the mother simply to re-argue the application based on the intermediary assessment. However, whether the transcripts create a different situation I shall consider.

The Ground Rules arising out of the intermediary assessment and perhaps to some degree the report of Dr Mann were identified in the order of 16 November 2018.

The transcript shows that the mother was given a card to hold up in the event that she was tired or confused; that she was taken to the central issue immediately in her evidence in chief and subjects were identified; a break was taken after examination in chief, another after 1 hour of cross-examination [M138] and perhaps 45-60 minutes later [M153]. However, during the afternoon session, it appears to have resumed after the lunchtime adjournment and continued without a break until the mother concluded her evidence. The timings are not recorded on the transcript, but in terms of length it runs for about 50 pages compared to 55 pages for the morning session and no breaks are recorded at all. At the conclusion of questions by the Guardian the mother says in answer to the judge that she is ok to continue but at almost the same time says she just wants to go home, and the judge’s questions take up about three further pages. So, it seems that the mother gave evidence for about 2 hours without a break in the afternoon. During the afternoon session the judge intervenes on limited occasions when the mother’s answers are less focussed. During cross examination she was robustly examined and there were some longer and more complex questions which she appears to have had some difficulty in answering, but the overall impression of the evidence is that she managed; the judge occasionally intervened to explain a complex word on a critical issue [M119]. It was submitted that it appeared during evidence that there were some matters which had not been canvassed by the mother with her legal team and that the input of an intermediary in the preparation for the case would have addressed this, but my impression of the transcript is that any new details were not out of the range of what might usually be expected in this sort of case. HHJ Backhouse found her evidence to have been in general coherent.

It is clear then that the afternoon session does not seem to have complied with the breaks Ground Rule and the impression from this session is of the quality of the mother’s evidence deteriorating over this session to some degree. I have considered whether this apparent failure to comply amounts to a sufficient departure from the Ground Rules on its own to warrant a conclusion that the mother’s ability to participate fairly and appropriately was compromised to a degree that justifies reaching the conclusion that the non-compliance amounted to a procedural irregularity then lead to an unjust result or in alternative terms whether the non-compliance rendered the hearing of the mother’s evidence materially unfair. On a fairly fine balance I do not think that this alone did. However together with the concerns over the lack of compliance with the Ground Rules about breaks in relation to the medical evidence, in particular Professor Stivaros and Mr Richards and Mr Morrison (see below) I think the overall combined effect in relation to the mother was that there was non-compliance with the identified Ground Rules which was material, and which thus affected the overall fairness of the hearing. Thus, I accept that the evidence from the transcript demonstrates sufficient additional evidence which shows that the Ground Rules identified by HHJ Backhouse were not implemented sufficiently in respect of the mother and warrant a conclusion that they alone demonstrate that the hearing was unfair to the mother. It is a relatively fine balance as the breaks alone form only part of the Ground Rules and in other respects, in the use of simple language and questions, the impression from the transcripts is one of in the main compliance. But I am conscious that the mother’s cognitive assessment showed a lower level of functioning than the father’s and that the intermediary report of Ms Smith contains a detailed set of recommendations based on her assessment to promote fair participation and having regard to this non-compliance with the Ground Rules clearly creates a real risk of adverse impact. The judgment of HHJ Backhouse identifies the mother as a more credible witness but not one whose evidence is sufficiently reliable to allow the judge to say, on balance, she was probably not a perpetrator. A material change in the mother’s credibility arising from fuller compliance with Ground Rules clearly might make a significant difference to her. I did not hear submissions on the point that had this application been finally determined by HHJ Cove it would have been open to her as the judge who rejected the application in 2020 to have said the combined effect of the intermediary report and the impact of the transcript was sufficient to meet the test to permit re-opening. It seems to me that the transcripts are sufficient on their own to establish the mother’s case. The refusal based on the intermediary report alone could have been the subject of an appeal, but it was not.

In relation to the father’s case what the transcripts seem to show is as follows:

Thus the transcripts show that the Ground Rules in relation to breaks were not consistently followed during the experts’ evidence or during the parents’ evidence although the non-compliance was not as extensive as the father’s skeleton initially suggested. HHJ Backhouse clearly concluded that the father’s evidence deteriorated over time. Whether the father's evidence deteriorated in its credibility due to the Ground Rules issue or was because of inherent lack of honesty is a matter which cannot be resolved but of course an answer may emerge if his evidence is re-heard.

The overall impression from the transcripts is that:

The judgment identifies the fact that the parents credibility impacted upon the ultimate conclusions as to the perpetrator. It is also of note that in some respects the judge identified the parties as cooperative or partially credible witnesses. There is some reason to believe that better adherence to Ground Rules, or indeed better Ground Rules might have assisted the parties in giving their evidence and might have affected the views that the judge took of them. How this might eventually play out of course cannot be known. Either the mother or father might emerge as a more or less credible witness at a rehearing and a clear perpetrator might be identified (if the cause of the injury remains inflicted injury) or both parents might remain in a pool of perpetrators with or without failure to protect findings in tandem.

Dr Mann and Dr Radcliffe are both experts instructed pursuant to Part 25. Ms Smith and Miss Turner both identify that they are not court-appointed experts but rather are professionals in advising on promoting the participation of vulnerable parties or witnesses. To that extent they are experts in their field, the fields of expertise that they and Drs Mann and Radcliffe operate in are different. Of course, it is not open to the mother to raise arguments about the comparison between the report of Dr Mann and Dr Radcliffe in respect of her because she has not undergone a further cognitive assessment by a court-appointed expert. Ultimately, I do not consider one can seek to draw comparisons between the evidence before the court on 2018 and now and to prefer one rather than the other. The approach must be whether the recent evidence casts doubt on the decision previously reached on Ladd v Marshall terms

It is unfortunate that the intermediary assessment in 2018 was apparently conducted at the door of court and that there is no record of the assessment save what flowed from it, which is recorded in the form of the Ground Rules identified in the order of 16 November 2018. Enquiries made of Communicourt subsequently have not generated any evidence as to that assessment. The fact that the later assessment of the mother was also conducted by Communicourt (the same legal entity and the courts’ primary provider of intermediary assessments and services) and reached what appear to be significantly different conclusions concerns me. The fact that the intermediary assessment of the father conducted by an independent intermediary also reaches conclusions which appear to be significantly different to those reached by Communicourt in November 2018, supports the conclusion that the current reports are credible. In the absence of any evidence as to the earlier assessment it is impossible to know, and I decline to speculate, why the outcomes are different. The fact is that those reports are materially different.

In terms of the Ladd v Marshall approach:

I therefore conclude that I should take the evidence of Dr Radcliffe and Ms Turner into account and plainly it supports the conclusion that the hearing in 2018 was potentially undermined by the absence of intermediaries in the preparation of the case and the conduct of the hearing.

For reasons which emerge both from the transcripts as to the lack of adherence to the participation directions which were identified and because of the impact of the fresh evidence, I conclude that the hearing in 2018 did not provide a fair hearing to the parents. In this case there is some material which supports the potential impact of those flaws given the particular findings of the judge as to credibility.

I therefore conclude that the parents’ applications succeed on Stage 1 and that the cause of C’s head injury will need to be relitigated.

A further directions hearing will need to be held to consider more fully the arrangements for that re-hearing, and more generally Stages 2 and 3 of the Re E process. I would intend to reserve the matter to myself unless it cannot be listed before me for an unduly long time.

That is my judgment.