A tale of two courts

A man is found not guilty of killing his child. It then turns out that a judge had previously decided that he had done it. How does that happen, and why?

In 2015, a man called Craig Beattie was accused of having killed his son, six-week-old Kye Kerr. A jury at Liverpool Crown Court found him not guilty.

Last week it was reported that a judge in the Family Court had already decided that Mr Beattie had caused his son’s death, long before the criminal case. That judgment wasn’t published or shown to the jury in the Crown Court, though.

John Woodcock, an MP from Cumbria, told the Guardian that he would be writing to the new Justice Secretary “asking her to review urgently the status of family court findings in criminal trials”.

Because family and criminal courts have different criteria for when they accept something as proved, Family Court findings can’t currently be given as evidence in criminal trials.

Different courts, different systems

In England and Wales, people are prosecuted for crimes in the Magistrates’ Court and Crown Court.

In this criminal court system, people are only found guilty if the judge or jury are "sure" that the evidence proves their guilt. Being sure is considered the same as the more famous phrase, proof "beyond reasonable doubt".

Most non-criminal matters are dealt with in different courts. Cases about children—who they should live with, or whether they are at risk—are heard in the Family Court.

Judges in the Family Court make decisions using a different test, called the civil standard of proof, or ‘balance of probabilities’. Instead of having to be sure that something happened, the judge just needs to think it was more likely than not. 

Sometimes things happen that are relevant to both criminal and family courts. The death of a child is one of them.

After Mr Beattie was arrested over the death of his son in September 2013, social workers from Cumbria County Council went to the Family Court with their concerns about his daughter.

In order to work out what to do—specifically, whether Mr Beattie should be allowed to have contact with his daughter in future—it was important to work out whether he had previously caused the death of his son.

Mr Justice Peter Jackson decided that, on the balance of probabilities, he had. The judge barred Mr Beattie from having contact with his daughter, ordering that she live with her mother with supervision from social workers.

As is common, none of the family is named in that judgment, which was published in May. The Sun now seems to have worked out that it refers to Mr Beattie, and has been followed by other outlets.

Why didn’t the jury know about the Family Court decision?

Mr Justice Peter Jackson wrote that his judgment about Mr Beattie went unpublished “so as to avoid prejudicing the criminal trial”. In other words, the jury might have let their decision be swayed by the outcome of the family case, rather than deciding on the evidence in front of them.

A decision by a judge about what he thought about the evidence before the Family Court isn't considered proof for the purposes of a criminal case.

Because of the different standards of proof, it's possible for something to be proved to the civil standard (more likely than not) while still not being proved on the criminal standard (beyond reasonable doubt). That remains true even if the evidence in each case is identical.

It's likely that some of the evidence the Family Court saw was also placed before the jury, but there are some restrictions on how the things parents say there can be used in a criminal case.

As mentioned above, they had to be sure that a crime was committed, whereas the Family Court judge just had to decide whether it was more likely than not that Mr Beattie had caused his son’s death.

Family barrister Lucy Reed says that not releasing the conclusions of family court judges in such cases is “entirely standard practice”. If someone were convicted in circumstances where the jury had been told of the Family Court decision, he or she could potentially appeal on the basis that the jury was prejudiced by seeing what the Family Court made of the evidence, when it had to make a different kind of judgement.

As family law blogger John Bolch puts it, “if the findings were revealed then there would actually be fewer successful convictions”. That’s under the law as it stands; Mr Woodcock seems to be suggesting it that it be changed so that Family Court judgments are admissible at criminal trials.

Things are different after someone is convicted, even though it’s theoretically possible that they could appeal and face a re-trial in future. Earlier this year, the Court of Appeal decided that a Family Court judgment finding that Ben Butler had caused the death of his daughter Ellie should be published after he was convicted of her murder.

And when it’s the other way around—when a family judge is faced with someone already convicted of harming their child—the Law Society says that it’s “exceptional” for the Family Court not to accept the version of events established in the criminal case. If something has been proved beyond a reasonable doubt, logically it must also be more likely than not that it happened.

Update 15 September 2016

We revised the article to reflect points made by a family law expert, including on the different evidence that might be available to a criminal court jury compared to a Family Court judge.