Cobb J sets out core principles for conducting re-hearings ~ 28 November 2016, FAMILY LAW WEEK.
Cobb J sets out core principles for conducting re-hearings
Court re-hears fact-finding into life-threatening injuries to child
In Re AD and AM (Fact-finding: Rehearing)  EWHC 2912 (Fam) Mr Justice Cobb has set out the core principles applicable when conducting a re-hearing and considering “the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court”.
This was the re-hearing in relation to a 2013 fact-finding, which had concluded that a mother had caused life-threatening injuries to her son and that these were non-accidental. Cobb J refers in his judgment to the three stage test on an application for a re-hearing (Re ZZ & Others  EWFC 9). The judgment addresses stages 2 and 3: namely, the court’s reasoning for permitting a limited investigation and the calling (and re-calling) of evidence relevant to the facts (“stage 2”: Re ZZ), and the determination of the “stage 3” process – the hearing of the review, considering “the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court” .
The judgment concerns two children, a boy AD (4) and his sister AM (7), who were living at home with their parents and paternal grandmother. A July 2013 fact-finding found that the mother had inflicted near fatal injuries on AD, who had suffered massive head wounds and spinal fractures. In 2013, a finding had been made that there was an incident where AD was left alone at approximately 4.30pm, but that this would not have been sufficient to cause the injuries.
In respect of stage 3 (the re-hearing), Cobb J revisited the law, and set out the following core principles (summarised below):
i) In a re-hearing, the previous findings are the starting point of the local authority’s evidence, and the evidential burden falls on the parents in challenging those existing findings, however the legal burden remains on the local authority to prove its case;
ii) It is for the local authority to prove its case on the balance of probabilities;
iii) In evaluating the evidence, the court must have regard to the wide canvas of material, both lay and professional. No person has as wide a perspective on that material as the judge, and they must “exercise an overview of the totality”;
iv) The role of the court and the role of the expert are different – it is the court which is in the position to weigh the expert evidence against its findings;
v) Prominently featured on the wide canvas ((iii) above) is the evidence of the parents themselves;
vi) It is perfectly acceptable (and not uncommon) for the court to reach a conclusion that a medical condition or presentation has an unknown cause;
vii) A court must bear in mind that “today’s medical certainty may be discarded by the next generation of experts, or that scientific research will throw light into corners that are at present dark” (Re U (Serious Injury: Standard of Proof); Re B  EWCA Civ 567;  2 FLR 263).
Cobb J also summarised the law on the use of experts, particularly in light of one of the experts speaking of positioning himself against the “Child Abuse Community”.
Having reviewed the evidence, Cobb J found “no basis for diverging from the essential finding made in 2013 that the mother inflicted serious head injuries upon her son”. With regard to AD’s spine, in light of the existence of osteopaenia, Cobb J stated that he was no longer satisfied on the balance of probabilities that the thoracic fractures were non-accidental, and so withdrew that finding.
Save for that withdrawal, the outcome of the fact-finding hearing was as before.
For the judgment and a fuller summary of it by Lucia Crimp of 1 King’s Bench Walk, from which this news item is derived, please click here.