In a judgment handed down today, Re X (No 3) [2016] EWHC 2755 (Fam) the President of the Family Division, Sir James Munby, decided to continue, despite the withdrawal of the birth parents concerned, a full re-hearing of the original allegations made in care proceedings in 2013 involving an injury to a child, X, who was removed from the birth parents and adopted in 2015. 

The case had initially raised questions about the reversal of an adoption order; now it will concentrate, for X’s long term benefit and in the public interest, on ascertaining the truth about what happened to X.

The problem for the birth parents was that, after the initial finding of fact by the family court judge that one or other of them must have caused injuries suffered by X, and the removal of X from their care on welfare grounds, and X’s adoption – after all that, the birth parents were tried in the Crown Court on counts of child cruelty (section 1(1) of the Children & Young Persons Act 1933). After the close of the expert evidence, the Crown abandoned the prosecution. The birth parents were, on the judge’s direction, acquitted, on the basis there was no case to answer.

After that, the birth parents applied for permission to appeal against the original family court judge’s decision at the fact-finding hearing in 2013, essentially on the ground of new evidence, as emerged at the criminal trial. They said they had been the victims of a miscarriage of justice. They wanted to clear their names, but they also wanted to clear their way to another appeal, against the adoption decision. That was always going to be a much harder thing to achieve.

We wrote about the difficulties of undoing an adoption order in an earlier post, Can an adoption order be undone? 

The case came before Sir James Munby and his decision, published as  Re X [2016] EWHC 1342 (Fam), was that there should be a rehearing of the original fact-finding hearing against the birth parents. He said, at para 22:

“…the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.”

That case was then subject to reporting restriction order (RRO) to ensure the parties should not be identified, despite the fact that some of the identifying information had already been in the public domain (as a result of the criminal proceedings in open court). That was Re X (No 2) [2016] EWHC 1668 (Fam). We discussed the implications in another post: Transparency versus Confidentiality: the Re X judgment. 

Today’s judgment marks another twist in the case. The full rehearing was due to begin on 17 October. On 11 October, the birth parents notified the court and the other parties that they wished to withdraw from the rehearing and no longer sought to challenge the original findings of fact. They explained their decision in witness statements expressed in emotional terms (perhaps unsurprising in the circumstances):

“The last four years have been a nightmare for us,” the mother said. “We have been robbed of one of our most basic rights, to be happy and have a family, by people who know nothing about us, who seemed to assume the worst before they even knew the facts. The whole family court process left us feeling that we were presumed guilty until proven innocent and that is just so very wrong.”

“These proceedings have taken a lot longer than we imagined they could, and every day that went by, the hope that we might one day be a family again has grown less and less. [… ] We now know that it is too late to move [X] from [the] adoptive parents. This would not be the right thing for [X].”

“We have thought a lot about the reasons for carrying on, but too much time has passed and we are suffering so much as a result of all of this and the thought of reliving it all over again. We know that the [adoptive parents] will also be suffering. The reasons we had no longer matter. We accept that it would not be right for [X] to be moved.”

The father said:

“I cannot even begin to think about the idea of giving evidence; I cannot face having to go through it all again. The proceedings surrounding our family, both civil and criminal, have taken four years of my life. I have been suffering through all of this… I believe now is the time for [us] to step back, as heartbreaking as that decision is. I mean no disrespect to the court or any other parties. I simply wish for this sad period of my life to come to a close.”

There is a sense here, almost, of coming to terms with a death; and it raises, certainly, the question whether in such circumstances the birth parents could not play some future role in X’s life. 

The immediate question for Sir James Munby, however, was a different one. Should the rehearing proceed in any event? Counsel for the birth parents said it should not. But other parties disagreed. There were questions about whether, if it continued, the birth parents could be compelled to give evidence in the rehearing. There was a suggestion that the birth parents were deliberately frustrating the process or that their withdrawal was a cynical response to the strength of the evidence against them. These issues are discussed in detail in the judgment.

Sir James concluded that, in spite of the birth parents’ withdrawal, the rehearing should go on. First, he said there was a solid advantage to be gained in proceeding with the full rehearing. The best interests of the child, X, and the public interest both pointed clearly and decisively in the same direction. Secondly, he said he was reasonably confident that the proposed rehearing would involve a sufficiently robust, fair and valid process capable of delivering the truth. It would not be compromised even if the birth parents played no part at all, though he would not rule out compelling them to give evidence if necessary. However,

“because of everything which has happened in this most unusual litigation, we are in a very good position to know what the birth parents’ case is and how it would, in all, probability be deployed before me…”

Comment

The decision illuminates an important principle in cases involving children. It’s not just about the truth being out there and the President of the Family Division being determined to find it, though that is important in the public interest. It’s also about the welfare of the child being paramount – and it largely is for X’s benefit that Sir James is keen that the truth about what really happened should be established. He also cited the public interest, because (as the birth parents point out) there is a strong chance that the system has failed them, and their child, in this case. So it’s for everyone’s benefit that any mistakes should be identified and avoided in future.

But let’s be careful not to assume the rehearing is a foregone conclusion. The difference between the civil and criminal standards of proof mean that a person who is not found guilty of doing harm to the higher criminal standard required in the Crown Court, may yet be found to have done harm on a “balance of probabilities” test, i.e. that it was more likely than not that they did it. This is often a cause of confusion and consternation about the justice system.

A cynic might say this differential is one the birth parents did not want to put to the test, and they are better off with a criminal acquittal than the chance of a fresh finding of facts in a family court. But a more benign approach would recognise the sacrifice they have willingly made, for the sake of their child, and the vote of confidence they have willingly given the adoptive parents, to whom they have entrusted X’s future. It is not for us to judge at this stage: but Sir James Munby clearly thinks he will be able to do so at the conclusion of the rehearing. Whether, on a civil standard of proof, he can really find “the truth” is another matter.