The Court of Appeal has ordered a second retrial in care proceedings relating to five siblings following the death of a ten-year-old girl in 2016, describing the judgment from the first retrial as“wrong and procedurally unjust”.
Summarising the case of A (No. 2) (Children: Findings of Fact)  EWCA Civ 1947, Lord Justice Peter Jackson said that in November 2016, the girl (S) was found dead in her bedroom. “Also in the home were her parents and her five siblings, including two older brothers.”
The Court of Appeal judge said that “S died of strangulation and had suffered recent injuries to her genital area. The police investigation was deficient. No criminal charges have been brought. An inquest was opened and adjourned.”
The local authority issued care proceedings to protect the siblings. It alleged that S had been sexually assaulted and killed but that it was not possible to say who among the parents and older brothers might be responsible.
“The family deny this. Its position has been that S's injuries and death must have been the result of an accident in which she fell from her bunk bed, entangled in some netting. It has also raised the possibility that S had been attacked by an intruder," the Court of Appeal judge said.
There have since been two trials.
In December 2017, Mr Justice Francis found that the local authority had not proved its case and he dismissed the proceedings.
The local authority appealed and the decision was overturned by the Court of Appeal in July 2018.
The retrial came before Mr Justice Hayden in early 2019. In a judgment given in June 2019, he found that S's mother had caused the genital injuries in the course of an attempt at female genital mutilation (FGM) that took place outside the home and that she had then strangled S in her bedroom after their return. The father, but not the brothers, had colluded to hide what had happened.
The parents, supported by the brothers, appealed.
Lord Justice Peter Jackson said: “Having heard the arguments, I am in no doubt that the appeal must succeed on the grounds that the decision was both wrong and procedurally unjust.
“The FGM finding was conjectural and unsupported by any real evidence. It had not been alleged, or even investigated, and therefore took the parties by surprise. It must be set aside, and as it is the foundation for the identification of the mother as having killed her daughter, that finding cannot stand either.”
The local authority invited the Court of Appeal to substitute its own findings, but Lord Justice Peter Jackson said he would decline that invitation. “It would only be a proper course if there was just one realistic outcome and that is not the case here.”
As to whether a second retrial should be ordered, the family, supported by the Guardian, pleaded that it need not and that the proceedings should come to an end.
“With a heavy heart, I cannot agree,” Lord Justice Peter Jackson said. “The circumstances are too serious, and a further hearing may yet provide an outcome that is of value one way or another to the surviving children.”
He said that in deciding the issue as to whether there should be a rehearing, the Court of Appeal had a broad discretion, “and the discretion is particularly broad when we are considering whether to order what is probably an unprecedented second rehearing”.
Lord Justice Peter Jackson said at paragraph 127 that he took account of:
“(1) The seriousness of the issues. In a case of this extreme gravity, a party, here the local authority, should in my view only be shut out from a determination of its case if there are strong countervailing reasons.
(2) The interests of the children. If it is possible, it is in the interests of all the children, and the youngest three in particular, for there to be valid findings about their sister's death and for measures to be taken for their protection if that proves to be necessary.
(3) The likely evidential result. Although it is profoundly unsatisfactory that there is still no clarity about how S came by her injuries and death, there is no reason to believe that a rehearing cannot provide a legally valid conclusion that would make the matter clear, or at least clearer. This case is different to Re J, where the evidence was incapable of supporting findings. Here, two appeals have succeeded because of errors of process and not because the evidence is incapable of justifying a s.31 finding. If the local authority was to succeed, the court might face a very difficult welfare decision, but that is not a good reason for abandoning the proceedings.
(4) The fairness of a further trial. I am alive to the concerns expressed about litigation fatigue and its possible effect on the integrity of the trial and the assessment of witnesses. At the same time, it is at least possible that some of the professional evidence already heard can be carried forward so that it need not be given again. As to the lay evidence, the trial judge will no doubt be alert to the risks that have been pointed out to us. I would therefore not accept that there cannot be a fair trial.
(5) The impact upon the family. This carries significant weight where proceedings have already lasted for three years and where a further trial must considerably extend that period. The emotional cost to the family of the loss of S and of the continuous proceedings cannot be overstated. The Guardian has made the observation that they have not yet properly been able to mourn S's death. I am mindful of all this, and take it into account. In the end, however, it has not been shown that the burden of continued proceedings would be disproportionate to the seriousness of the matters in issue.”
Lord Justice Peter Jackson said that after full reflection, he would therefore hold that “in these most unusual circumstances a second retrial is unavoidable and that it would serve the interests of justice”.
Agreeing, Lord Justice Underhill said: "I feel acutely the force of the argument that it would be wrong to put this family, and indeed the witnesses who would have to be called, through the ordeal of such a hearing, particularly when there can be no certainty – bearing in mind the evidential problems to which I have already referred – that it will result in a definitive finding or one which will lead to a straightforward welfare decision.
"I have wrestled with this, but in the end I think the balance must come down in favour of a further hearing, for the reasons given at para. 127 of Peter Jackson's LJ judgment. His points (1) and (2) carry great weight. A child has died, and (then or shortly before) sustained significant genital injuries, in the middle of the night in a house occupied only by members of her own family. It is of the greatest importance, from the point of view of all the members of the family, that valid findings be made as to how that happened; and, like Peter Jackson LJ, I am not persuaded that findings may not still be made which will enable the local authority to reach a properly-informed decision about how to proceed."
The local authority's application was therefore remitted to the family court for a retrial preceded by an early case management hearing in accordance with arrangements that had been made with the President of the Family Division.