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Failure of judicial nerve or a genuine unknown cause

Date posted: 4 February 2021

Felicity Jones

Family Solicitor Felicity Jones considers this unusual case involving 3 fact-finding hearings concerning the tragic death of a 10 year old child.


The matter of London Borough of Southwark v A Family [2020] EWHC 3117 (Fam) concerns the tragic death of a 10 year old girl in her own home in November 2016. Initially, the police treated the death as a tragic accident and so did not conduct the same level of investigation which they might have done otherwise. This was later criticised by the Court as it left quite large gaps in the forensic evidence available.


Four days after her death, a post-mortem took place which recorded strangulation as the most likely cause of death but also recorded genital bruising, suggestive of sexual assault. It was only then that the matter treated as homicide.


The child had 2 older brothers and 3 younger siblings. All but the youngest were removed into foster care and the Local Authority began care proceedings. No one had been charged or convicted in the Criminal Court and so the Family Court was required to undertake a fact-finding hearing to establish, on the balance of probabilities, whether, as was the Local Authority’s case, the child had suffered a sexual injury and was strangled and if so, whether that was as a result of a culpable act by the parents or the child’s older brothers.


At the first fact finding, the Judge dismissed all of the Local Authority’s case and the family were reunited. The Local Authority appealed and was successful and the matter was listed to be heard again. This time the Judge made findings that the child had died at the hands of her mother as a result of a failed attempt at FGM. This time the family appealed and, again, the Court of Appeal allowed the appeal and set aside that Order, directing a further fact-finding hearing.


By now, the family members had spoken to the police, given statements to the Court and all witnesses would be being cross-examined for the third time.


The Court began to hear live evidence in March 2020 but the country then went into national lockdown and the proceedings moved to be conducted wholly via Zoom. The Judge, and indeed the parties, considered that there should be no further delay in this matter being heard and resolved.


The Judge heard all of the evidence and reminded himself of “the dangers of finding a positive based on the elimination of known alternatives” and gave consideration to the option that there may be an unknown cause. He considered whether finding an unknown cause was a “failure of judicial nerve” but decided that to find the other way would be an “affront to [his] judicial conscience”. The Judge reminded himself to look at the bigger picture and took into account the views of the professionals who had been working with the family before and after the child’s death.


The Judge found that the evidence presented by the medical experts put homicide and sexual assault at the top of the list of likely causes, but did not prove that that was what had happened. There was no hint of risk factors associated with sexual assault or violence within the family and a lot of evidence that they were a “high-functioning, effective, coherent and loving family”, although this of course does not prove that they did not do it.


The Judge ultimately found that the Local Authority’s case had not been proven to be more likely than not and so the Judge could not make the findings that they sought. The Judge stated his “task is not to explain [the child’s] death but to consider whether in law the Local Authority are entitled to interfere in the private life of this family”.


The Judge could not make these findings and so, at this third fact-finding hearing, the Local Authority’s application was dismissed.


If you need help with a family case concerning the local authority contact Mavis on 020 885 7986 for an appointment to see Felicity or another solicitor in the family team.