The Court of Appeal give guidance on how to challenge findings of fact made where the ground to do so is as a result of fresh evidence.
Re E (Children :Reopening findings of fact) 2019
I’ll dash through the facts of the case. Child aged 10 months found to have 3 cigarette burns on her arm, variety of explanations given, rejected by expert in care proceedings, Court made findings of inflicted injury. Care Orders were made in relation to that child and two older siblings. At later criminal proceedings of mother, a medical expert accepted mother’s explanation of an accident and the criminal case was dropped.
Those representing the mother considered this to be fresh evidence, capable of satisfying the Ladd v Marshall guidance
- Ladd v Marshall  1 WLR 1489 remains powerful persuasive authority: see Sharab v Al-Saud  EWCA Civ 353 and generally the discussion in the White Book 2019 at 52.21.3.
- Ladd v Marshall familiarly provides that:
- “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
- The durability of Ladd v Marshall shows that it encompasses most factors relevant to applications that are likely to arise in practice but as Hale LJ noted in Hertfordshire Investments Ltd. v Bubb  EWCA Civ 3013  the criteria are not rules but principles to be looked at with considerable care.
There has previously been judicial discussion as to whether the Ladd v Marshall provisions should be more generously interpreted in family cases, and the Court of Appeal clarify this
- It has been said that the Ladd v Marshall analysis is generally accepted as being less strictly applied in cases relating to children: Webster v Norfolk County Council  EWCA Civ 59 per Wall LJ at . At  he continued:
- “The rationale for the relaxation of the rule in children’s cases is explained by Waite LJ in Re S (Discharge of Care Order)  2 FLR 639 at 646, where he says:-
The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.”
- In Re G (to which I have already referred) Macur LJ made this observation about Webster:
- “16. For myself, I doubt that this obiter dicta should be interpreted so liberally as to influence an appellate court to adopt a less rigorous investigation into the circumstances of fresh evidence in ‘children’s cases’. The overriding objective of the CPR does not incorporate the necessity to have regard to “any welfare issues involved”, unlike FPR 1.1, but the principle and benefits of finality of decisions involving a child reached after due judicial process equally accords with his/her best interests as it does any other party to litigation and is not to be disturbed lightly. That said, I recognise that it will inevitably be the case that when considering outcomes concerning the welfare of children and the possible draconian consequences of decisions taken on their behalf, a court may be more readily persuaded to exercise its discretion in favour of admitting new materials in finely balanced circumstances.”
- A decision whether to admit further evidence on appeal will therefore be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. In cases involving children, the importance of welfare decisions being based on sound factual findings will inevitably be a relevant matter. Approaching matters in this way involves proper flexibility, not laxity.
Those representing the mother believed, reasonably, that the only route open was an appeal
When pursuing the route of an appeal out of time, those then advising the mother believed that it was the only course open to her. That belief was understandable, being based upon a statement now in the Red Book 2019 at p.2247 that the first instance court has no jurisdiction to re-open findings of fact once an order is sealed, a statement that reflects obiter observations made by this court in Re G (A Child)  EWCA Civ 1365,
The Court of Appeal were looking, however, as to whether an alternative route of inviting the Court who made the findings to revisit them in the light of fresh evidence was available.
I think most of us believed that once the order was sealed, the Court was done, and it would have to be an appeal.
A case I wrote about years ago suggested this (it is the one where the Judge originally gave a judgment finding one parent responsible for the injuries but before the order was typed up and sealed changed her mind and found the other responsible. This was permissible as long as the order were not sealed. Permissable procedurally in any event, there are obvious appeal points about the forensic process.
- The case referred to (Re L and B) was an unusual one. A trial judge had given a short preliminary judgment at the end of a fact-finding hearing, determining that the father was the perpetrator of injuries to the child. A request for clarification was made and two months later a ‘perfected’ judgment was provided in which the judge stated that both parents may have been the perpetrator. The Supreme Court held that on the facts of that case the judge had been entitled to change her mind as the order in that case had not been sealed. These are the paragraphs referred to in Re G:
- “16. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.
19. Thus there is jurisdiction to change one’s mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal.
42. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note)  EWCA Civ 605  1 WLR 2409, as applied to family cases in In re A  1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.”
- These paragraphs are therefore particularly concerned with the circumstances in which a judge may or may not change his or her mind. They are not addressed to a situation in which the court is being asked to take account of further evidence, although that clearly could be one reason for a change of mind
It was clear in this case that the Care Orders had been made, and thus the orders sealed, so appeal seemed to be the only route to looking at the findings again in the light of the medical evidence obtained in the criminal proceedings.
- 40… more fundamentally, the statutory landscape had changed with the establishment of the family court. The court came into existence on 22 April 2014 by virtue of Part 4A of the Matrimonial and Family Proceedings Act 1984. This includes section 31F (‘Proceedings and Decisions’), comprising nine subsections of which two are relevant:
(3) Every judgment and order of the family court is, except as provided by this or any other Act or by rules of court, final and conclusive between the parties.
(6) The family court has power to vary, suspend, rescind or revive any order made by it, including—
(a) power to rescind an order and re-list the application on which it was made,
(b) power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c) power to vary an order with effect from when it was originally made.
- In my judgment, s. 31F(6) gives the family court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter. While a finding of fact is not in a strict sense “an order”, it can comprise the determination of an issue that is crucial to the disposal of the proceedings and is susceptible to appeal: Re B (Split Hearing: Jurisdiction)  1 FLR 334 per Dame Elizabeth Butler-Sloss P at 336-337. Such a finding of fact is integral to the order on which it is based and accordingly comes within the scope and purpose of the section.
- My further assessment that s. 31F(6) continues to apply after the end of the individual set of proceedings is based firstly on the fact that the words of the section are not expressed to be limited in duration, but secondly and more fundamentally on the intrinsic nature of family proceedings. As I said at the outset, findings of fact can have longstanding consequences for children and families. Their effect is not only felt in the moment they are made, but persists over time. There is therefore no reason to limit the time within which the court can exercise its power to correct a flawed finding of fact that may have continuing legal or practical consequences.
Obviously if the original Judge does not do so, the route for an aggrieved parent then is appeal, but this opens the door to the original Judge being asked to reconsider as an alternative to an appeal.
- Having established that the family court has jurisdiction to review its findings of fact, the next question concerns the proper approach to the task. As with the approach of an appeal court to the admission of further evidence, the family court will give particular weight to the importance of getting it right for the sake of the child. As was said in Re L and B at :
- “In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.”
- The test to be applied to applications for reopening has been established in a series of cases: Birmingham City Council v H (No. 1)  EWHC 2885 (Fam) (Charles J); Birmingham City Council v H (No. 2)  EWHC 3062 (Fam) (McFarlane J); and Re ZZ  EWFC 9 (Sir James Munby P).
- These decisions establish that there are three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
- In relation to the first stage, these decisions affirm the approach set out in Re B (see para. 28 above). That approach is now well understood and there is no reason to change it. A court faced with an application to reopen a previous finding of fact should approach matters in this way:
- (1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.
(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.
(3) “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial.” There must be solid grounds for believing that the earlier findings require revisiting.
- I would also draw attention to the observations of Cobb J in Re AD & AM (Fact Finding Hearing: Application for Rehearing)  EWHC 326 (Fam) about the care that must be taken when assessing the significance of further medical opinions at the first stage (para. 71) and as an example of the need to control the identification of issues and gathering of evidence at the second stage (paras. 86-89).
- Pausing at this point to compare the hurdles facing an applicant to the trial court and an applicant to this court, it can be seen that the processes are by their nature different. The gateway under CPR 52.21(2) and the Ladd v Marshall analysis concern the admissibility of evidence, while the first stage of an application for a review requires a consideration of the overall merits of the application. It cannot be ruled out that the different procedures might throw up different results in similar cases, but on the whole I think that this is unlikely. In both contexts, the balancing of the public interests is carried out with a strong inclination towards establishing the truth in cases where there is good reason for a reassessment, and as a result the outcomes will tend to converge.
The Court of Appeal note that there is presently a lacuna in that the Family Court can be asked to reconsider findings but not the High Court, and that this has been fixed in relation to ancillary relief by FPR 9.9a and that the Family Procedure Rules Committee may wish to consider doing the same for children cases in the High Court.