Last week Mr Justice Baker (now Lord Justice Baker) published three judgments from care proceedings, naming the parents of a child known as Q. Q had suffered a range of injuries, including rib fractures and head injuries, and those injuries had been inflicted by one or other – or both of his parents.

The unusual features of this case are that the jury in the Crown Court found the mother guilty of inflicting the head injuries, whilst the Family Court Judge (Baker) found as a fact that the father had done it. How is that possible? How can it be right?

This post attempts an explanation of how such a confusing and contradictory situation can have arisen – but there is far more detail in the judgments than we can sensibly give here, and we encourage those who are interested to read the full set.

The three judgments can be found here :

Plymouth City Council v Wilkins & Ors [2017] EWFC 75 (25 October 2017) (AND IN THE MATTER OF Q (A CHILD) (FACT-FINDING HEARING))

Plymouth City Council v Wilkins & Ors [2019] EWFC 60 (14 June 2019) (AKA AND IN THE MATTER OF Q (A CHILD) (FACT-FINDING REHEARING))

Plymouth City Council v Wilkins & Ors [2019] EWFC 70 (19 November 2019) (AKA AND IN THE MATTER OF Q (PUBLICATION OF JUDGMENTS))

The difference between civil and criminal courts

Family and criminal courts have different functions. Criminal courts are all about protecting the public and punishing offenders, whilst family courts are all about protecting and promoting the welfare of the individual child – and they are not in the punishment business. A family court will hold a trial of facts (A fact finding hearing) only where it needs to know who hurt, harmed or exposed a child to risk of harm in the past, in order to help it make decisions about how to protect a child in future.

Sometimes a person is acquitted of a criminal offence, but found ‘guilty’ of causing the injury or assaulting an adult in the family court. One prominent recent example is the case of Poppi Worthington – the Crown Prosecution Service decided not to even charge Poppi’s father with any offences connected to her death, because it was felt there was insufficient evidence and that there would be ‘no realistic prospect’ of a conviction, and yet the Family Court had enough evidence to conclude that Poppi’s father had abused her in the hours before her death (it didn’t find that the abuse caused her death). Subsequently the Coroner who conducted the inquest into Poppi’s death concluded she had died of asphyxia shortly after being sexually abused by her father.

Civil courts – including the family courts dealing with child protection – operate to a lower standard of proof than criminal courts – this means its easier to prove something in a family court than in a criminal trial. So it isn’t in fact that uncommon for there to be insufficient evidence to charge or secure a conviction (where the standard of proof is ‘beyond reasonable doubt’), but for there to be enough evidence to make a civil finding in a family court (where something is proved if it is ‘more likely than not’). Because an acquittal only means that an offence has not been proved, rather than it necessarily meaning the defendant is innocent that is not legally inconsistent, although it is difficult for the public and those involved to wrap their heads around. 

But in the Plymouth case this wasn’t quite the usual scenario : a jury was satisfied so it was sure (beyond reasonable doubt) that the mother caused an injury which a High Court Judge thought was more likely to have been caused by the father. Now, whilst those two decisions are factually incompatible, they are legally permissible. This post will attempt to explain why. 

Public interest, press coverage and privacy

Before looking at the substance of the case it’s worth noting that one of Baker J’s three judgments is dedicated to the question of publication and anonymization, and Baker J takes as his starting point the Guidance on the publication of judgments issued by the former President of the Family Division Sir James Munby in 2014. His reference to this guidance is a reminder that this guidance is still in force and should be followed by judges. The request for publication had come at the mother’s request (she has subsequently given interviews to the media about the injustice of her situation), and was opposed by the father, ostensibly on the basis that the child might be identified. 

Baker J has permitted publication of the names of the parents because he recognised that this sort of tension between one court and another is a matter of genuine public interest, and because the names of the parents were already in the public domain, since they had both been defendants in the public criminal trial. Q himself remains in foster care and is to remain anonymous.

Unsurprisingly, there has been quite a lot of press coverage of this case in the wake of the judgments. For example, the mother is interviewed in The Times (£) : Mother convicted of injuring child tells of ‘every parent’s nightmare’.

A mother says she is living “every parent’s worst nightmare” after she was jailed for seven years for harming her baby even though she had been cleared previously by a senior judge in a family court.

Elizabeth Wilkins, 25, a former law student, was jailed last year but the jury that convicted her had not been told that a family court judgment had ruled that the child’s father, Erick Vanselow, 31, caused the boy’s serious injuries.

Evidence presented to the family court included an apparent confession by Mr Vanselow when he told police: “I think I could have shaken him too hard to the point where something’s gone wrong.”

The Times report the mother as saying that :

“Words cannot really express how let down I feel by the system,” she said. “All I want, as my son is now thriving, healthy and happy, is to right this wrong and for the public to know the truth about both sides of this case.”

and they tell us that :

Lawyers believe it is the first time two people have been accused of harming a child and one has been convicted of an offence by a jury while the other has been blamed by a judge hearing evidence in a family court.

It is certainly the only case we can think of where this particular class of outcomes has been made public, though that isn’t to say it hasn’t happened before.

None of the news reports we’ve seen included links to the judgments, and don’t really help the reader to understand the incomprehensible contradiction of how two courts could blame different parents of the same terrible act – but the judgments are long and detailed, and we recognise that do so so would have been almost impossible in the sort of word count that mainstream media journalists are working to. We aren’t constrained by word counts and have found it really hard to digest and summarise the three judgments and evidence in a way that is accurate but still digestible for a non lawyer audience. To achieve it at all we’ve had to make this post longer than we’d like, and we’ve still had to leave a lot out – so we don’t criticise the papers here.

The history of the case

The short sequence is this :

In 2017 the family court held a trial to decide how Q’s injuries had been caused. The judge heard from both parents and had expert medical evidence to assist him. He concluded that the Father had inflicted the most serious head injury, that the mother had inflicted injuries relating to his eyes, and that he could not tell which of the parents had caused others. 

Subsequently the Crown Court heard the criminal trial. At the conclusion of that trial, the mother was convicted of a number of offences, including an offence of grievous bodily harm with intent relating to the head injuries. At the judge’s direction the father was acquitted of all charges, because the prosecution had elected to withdraw the main charges against him. Thus, by the end of the criminal trial there was only one defendant on the main charges of causing the head injury : the mother. She was convicted and sentenced to seven years in prison.

The conviction led the father to apply for a rehearing in the family court to see if, in light of the mother’s conviction and the evidence given during that criminal trial, the family court judge might clear him. Although the father was granted a re-hearing, he seems to have got cold feet and absented himself from it part way through (he had suggested that the process was too retraumatising for him to manage). However, the judge continued with the review exercise, and after a detailed comparison of how things had unfolded in each court, and a look at whether there was any new evidence that should lead him to change his mind – the judge concluded he should stick to his original finding. 

Subsequently the mother, who is in prison and is reported to wish to appeal her conviction, has applied for publication of the family court judgments.

And so we have the Crown Court saying one thing and the Family Court saying the opposite. 

A few points to think about…

Firstly, it’s worth noting that both court processes concluded the mother had inflicted injuries on her child, albeit not the same injuries. The family court judge had also concluded that the mother’s lack of attention to the child after the injury was caused (by the father) had contributed to a delay in him being given medical treatment. This does not seem to be a case of one obviously good and one obviously bad parent in some clean cut easy way, but a case where there were some worries about both parents (reflected in the initial decision to charge both parents).

Secondly, the family court judgment was not given to the jury. This is quite normal. The rules about what evidence a family court judge can consider are quite different to the rules in a criminal court, and in any event the judge’s view about what is more likely than not to have happened is not admissible against a defendant in a criminal case, where the jury have to be satisfied so they are sure of guilt – and where the legal building blocks for a specific criminal offence might be quite different from the decisions about harm caused to a child – it’s a bit like comparing apples with pears. 

Thirdly, a conviction in a criminal court is usually treated as proof in the family court, but this is not necessarily always so – there are circumstances where the family court can ‘go behind’ the verdict of the jury. This had to be considered by the judge when dealing with the rehearing because a decision to re-affirm the original findings that the father had caused the head injuries would in some way be going behind the jury’s verdict that someone else had been responsible (the mother). For those interested, paragraph 45 of the re-hearing judgment gives a useful summary of how the law in this area works (for those who don’t do latin prima facie means ‘on the face of it’). 

Fourthly, it’s important to remember that whilst we have a detailed explanation of the thinking of the Family Court judge, we cannot compare this directly with the thought processes in the Crown Court, because a jury’s deliberations are protected and there is no judgment or explanation of why they convicted her. The rehearing judgment of Baker J does however give a detailed explanation of what seems to have happened in the Crown Court, what led the prosecution to discontinue, and what impact that had on the remainder of the trial, and an analysis of where different evidence was led or given. 

The jury in the criminal case were left with a child with undoubtedly inflicted injuries and only one defendant. Although they could have returned a verdict of not guilty if they had formed the view the father was in fact the perpetrator (or if they just weren’t sure the mother did it), it’s hard to imagine they weren’t influenced by the fact that after the father’s evidence the prosecution had decided to focus their case on the mother. But as it was a jury trial we will never know, and it does little use to speculate.

So, why did the prosecution pull the plug on the case against the father? 

The father had put forward an incident when he said he’d accidentally dropped the baby on the kitchen counter. He had given differing accounts of how the child presented in the hours following and had suggested that the accidental drop might have accounted for the head injury. The way a child presents over time can be really useful for medical experts trying to work out when and how an injury was sustained, but as the medical experts in the family rehearing observed it is only as reliable as the person reporting it. Broadly speaking, the medical experts didn’t think the dropping could have accounted for the injuries. The father had given evidence that he had inadvertently ‘merged’ two different periods of time when describing how the baby was presenting. From an email sent by the prosecution which is recounted in the family court rehearing judgment, it appears that this ‘conflation explanation’ was accepted by the prosecution, and they used it to support the continued prosecution of the mother on the basis that (they thought) the father had left the fact that he’d left the child alone with the mother out of his accounts in an attempt to protect the mother. 

This conflation explanation evidence was evidence which was given for the first time in the Family Court at the first trial (before the criminal trial), where it had been thoroughly tested. In contrast to the view of the prosecutor, the family court judge had thought this was the least believable bit of the father’s evidence, and he explains with some force in his rehearing judgment why he had thought it was particularly unconvincing. 

Although it is ultimately the jury who made the decision in the Crown Court, it was the prosecutors’ view of the father on this point that altered the terrain the jury was dealing with – on one view this could have fundamentally shifted the direction of travel in the criminal trial away from the father and towards the mother. The mother gives some other additional explanations for the verdict in her interview with the Times however (such as the jury taking against her for finding out she had worked as an escort to earn money to pay for therapy). The family court judge, Baker J, was careful not to criticise the prosecution for their decisions, and so are we – second guessing why they acted the way they did is fraught with difficulty and potentially unfair. 

But the very brutal reality is that these two very different views of the father’s evidence on this point appear to have been pivotal in the two courts diverting and reaching incompatible decisions on very similar evidence. On one view, although the criminal standard of proof is higher and the criminal process more rigorous, some elements of the timeline and possible motivations of the parents appear to have been more exhaustively explored through the family court process.

It is said that the mother is seeking to appeal her criminal conviction. Even if she appeals successfully that in itself would not necessarily mean she got her baby back. Decisions about his long term future have been held in abeyance since late 2016 when he first sustained the injuries, and the family court is now likely to be keen to make long term decisions about his care without further delay.

We have a small favour to ask! 
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Thanks for reading!

Feature pic : Open and Closed by Andrew Rose on Flickr – creative commons – thanks!