A (No. 2) (Children: Findings of Fact)

Factual and Procedural Background

Three years prior to the judgment, a 10-year-old girl (referred to as S) was found dead in her bedroom at the family home. S died of strangulation and had recent injuries to her genital area. The household included her parents and five siblings, including two older brothers. The police investigation into S's death was deficient, and no criminal charges were brought. An inquest was opened and adjourned without resolution.

The local authority initiated care proceedings to protect the siblings, alleging that S had been sexually assaulted and killed, but could not identify who among the parents or older brothers was responsible. The family denied these allegations, offering alternative explanations including an accidental fall from a bunk bed entangled in netting or an attack by an intruder.

There were two trials. The first trial in December 2017 resulted in dismissal of the proceedings by Francis J due to insufficient proof by the local authority. The local authority appealed, and in July 2018 the decision was overturned. The retrial before Hayden J in early 2019 concluded that the mother caused the genital injuries in an attempted female genital mutilation (FGM) outside the home and then strangled S in her bedroom. The father was found to have colluded in concealing the events, but no findings were made against the brothers. The parents and brothers appealed.

The appeal court found that the FGM finding was conjectural, unsupported by evidence, and procedurally unjust as it had not been alleged or investigated, taking the parties by surprise. Consequently, the FGM and related findings were set aside. The court declined to substitute its own findings due to multiple realistic outcomes and remitted the matter for a further retrial preceded by an early case management hearing.

Legal Issues Presented

1. Whether the genital injuries were caused in connection with female genital mutilation (FGM) or at the same time as the neck injuries.
2. Whether the finding that the genital injuries occurred at a location outside the family home was procedurally fair, given the lack of notice and opportunity to respond for the mother and others present.
3. Whether the mother was responsible for strangling S.
4. Whether the injuries and death could have been caused by accident.
5. Whether the parents colluded to conceal the circumstances of S's death.
6. Whether the judge properly considered all relevant evidence and met the burden of proof.
7. Whether substitution of findings by the appellate court was appropriate.
8. Whether a second retrial should be ordered or the proceedings brought to an end.

Arguments of the Parties

Family's Arguments

• The judge failed to consider the totality of the evidence and developed an unsupported theory.
• The FGM finding was extraordinary, unsupported by medical evidence, and procedurally unfair as it was not pleaded or investigated.
• There was no expert evidence supporting the FGM theory; the injuries bore no distinctive signs of attempted FGM and lacked accompanying injuries indicative of a struggle.
• The judge refused to allow expert evidence on FGM and did not permit proper challenge to the theory.
• The family and others present at the alleged location of the FGM event were not given notice or opportunity to respond.
• Reliable evidence about S’s normal demeanour throughout the day was ignored.
• The judge gave undue weight to a child’s ambiguous foster care comment regarding circumcision and ignored alternative explanations.
• The judge’s findings about the mother as perpetrator lacked credible motive, ignored the improbability of undetected assault, and failed to consider alternative explanations.
• The judge inadequately considered the possibility of accidental causation despite expert evidence acknowledging it as plausible.
• The collusion finding was unsupported by evidence and ignored multiple factors indicating openness and distress by the family.
• The judge’s approach was unbalanced and potentially discriminatory regarding the family’s cultural and religious background.
• The family opposed substitution of findings by the appellate court and opposed a further retrial, citing prolonged trauma and evidential difficulties.

Local Authority's Arguments

• The findings of inflicted injuries and strangulation were supported by solid expert evidence.
• The genital injuries could have been inflicted separately from the neck injuries without medical implausibility.
• The judge was entitled to reject accidental explanations based on expert opinions and the overall evidence.
• The rejection of sexual motivation for the genital injuries opened the door to other motivations, including preparatory acts related to FGM.
• The refusal to allow wider expert evidence on FGM was justified; the evidence of Dr Lipetz was sufficient.
• The judge’s procedure, including adjournments for further evidence, ensured fairness.
• The judge was entitled to conclude the mother was the perpetrator, based on her wakefulness and the implausibility of other family members’ involvement.
• The judge’s credibility assessments were the product of the trial process and should not be disturbed.
• The judge clarified that adverse findings were against the mother only, not other women present.
• The collusion finding was supported by timing evidence and the family’s inconsistent accounts.
• The local authority resisted the appeal and opposed ending the proceedings without a further hearing.
• They invited the appellate court to substitute a pool finding including parents and brothers if the appeal succeeded on perpetration.

Children's Guardian's Position

• The Guardian did not participate in the fact-finding appeal but noted the FGM issue was unexpected and not anticipated to become significant.
• The Guardian questioned whether a third hearing would clarify disputed issues sufficiently to guide welfare decisions and highlighted the burden on the family.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the complex and tragic circumstances surrounding S's death, focusing on the timing, nature, and location of the injuries. It acknowledged the high calibre of expert evidence indicating inflicted injuries and ligature strangulation as cause of death. However, it found the judge's novel theory that the genital injuries were caused by a failed or preparatory attempt at FGM outside the family home was unsupported by evidence, procedurally unfair, and speculative.

The court emphasised established principles of fact-finding: findings must be based on evidence and proper inferences, not speculation; adverse findings require notice and opportunity to respond; and judges should be cautious when departing from the case as framed by the parties.

The judge's FGM finding was based on weak foundations such as a child's ambiguous foster care comment, the mother's cultural background, and unchallenged assumptions about the mother's behaviour and relationships. The court noted that the police had not investigated the alleged location of the FGM event, and relevant witnesses were not questioned on this matter. The judge also failed to consider significant evidence undermining the FGM theory, including the normal behaviour of S and the family's opposition to FGM.

The court found the judge's linkage of the genital injuries and strangulation, and his identification of the mother as perpetrator, to be undermined by the flawed FGM finding. It also found that the judge inadequately addressed alternative explanations such as accident and failed to properly assess evidence of collusion.

Given the complexity and evidential uncertainties, the court declined to substitute its own findings. It acknowledged the serious nature of the case and the importance of valid findings for the protection of surviving children but recognized that multiple outcomes remained possible.

Balancing the interests of justice, the court concluded that a further retrial was necessary, despite the considerable burden on the family, to enable a fair and comprehensive resolution of the issues.

Holding and Implications

The appeal is ALLOWED. The judge’s findings, particularly those related to female genital mutilation and the identification of the mother as perpetrator, are set aside as unsupported by evidence and procedurally unfair.

The case is REMITTED to the family court for an early case management hearing and a subsequent retrial in accordance with arrangements made with the President of the Family Division. The Female Genital Mutilation Protection Order is set aside by agreement of the parties. The judgments and orders will be sent to HM Coroner.

The decision directly affects the parties by nullifying the previous fact-finding judgment and ordering a further hearing. No new precedent is established beyond affirming the importance of procedural fairness and evidential foundations in fact-finding hearings, especially when novel findings are made. The ruling underscores the appellate court's caution in substituting findings and the necessity of fair process when adverse findings are introduced.