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The unprecedented case of a third fact finding hearing

Wednesday 11 March 2020

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The case concerns the following tragic background. A 10-year-old girl, S was found dead in her bedroom. She died of strangulation and suffered recent injuries to her genital area.

When the police arrived in the immediate aftermath, they did not perform a thorough investigation. Lady J King noted in the first appeal at pp8 of her judgment, ‘the investigation was replete with the sort of mistakes made in the Poppi Worthington case (Cumbria CC v M&F [2014] EWHC 4886 (Fam) [82-100]), the opportunity to gather critical evidence including DNA and fingerprint evidence, was lost consequent upon the delay and the deficiency in the police investigation.’ The police closed their minds to the possibility of third-party involvement or a perpetrated act that lead to failures in collecting critical evidence.

No findings were made at the conclusion of the first trial. The Local Authority appealed, and the retrial was heard by Hayden J.

Hayden J found that S’s mother caused the injuries to S deliberately in some act ‘preparatory to’ or due to a failed attempt at FGM. No party pursued this case.

A number of grounds of appeal were submitted, including an article 14 argument made by the family that they were treated in a way that was discriminatory due to undue prominence being given to their origins, religious and cultural identity; alongside arguments about factual and evidential matters. The Judgment of Hayden J fell, however, due to fundamental flaws in reasoning and approach. There was strong and unchallenged evidence against each of the primary conclusions, and no warning given to the parties that serious consideration was being given to the injuries being perpetrated in the manner found.

Caution should be taken when a Judge makes a finding that has not been set out in the schedule. Re G and B (Fact Finding Hearing) [2009] EWCA Civ 10 states a Judge need not slavishly adhere to a schedule, but any additional findings made need to be securely founded in evidence and the fairness of the process cannot be compromised.

No experts on FGM were called on the question of what or whether acts ‘preparatory to’ FGM’s took place; nor was there any clarity on the Mother’s likelihood to attempt to perform FGM on her own child. The lengthy judgment found a number of other flaws in reasoning and the family involved now face a third trial.

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