By Rachel Norgate
There has been some uncertainty over the correct approach to adopt when determining whether a finding of fact can or should be re-opened.
This issue has been addressed in the recent case of Re J (Children: Reopening Findings of Fact)  EWCA Civ 465.
This appeal arises from care proceedings about four children, A, B, C and D. The older two are the children of M and F1, while the younger two are the children of M and F2. D, the youngest child, has a degree of disability and developmental delay.
In 2019, F2 was accused of a sexual assault by his stepdaughter A. He was tried at the Crown Court in 2020 and acquitted after both had given evidence. In 2021, in Family Court proceedings between F2 and A’s mother (M), the court made no finding against F2 after a hearing in which A did not give evidence and played no part.
In 2022, an allegation of sexual assault was made against F2 by his daughter D. The local authority took care proceedings. Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A.
Meanwhile the children are living with M and contact between F2 and C and D is not taking place. The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. The forensic effect of the earlier family proceedings is that the alleged assault on A is taken as not having occurred.
The court granted the local authority’s application for the fact-finding outcome in respect of A’s allegation to be reopened and a full threshold hearing has been fixed at which she will give oral evidence. F2 appeals. His appeal is opposed by the other parties: the local authority, M, F1, A and the Children’s Guardian.
F2 appealed on five grounds, with the fifth ground asserting that the Judge was wrong to re-open A’s allegations where no “new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before”. This followed Mostyn J in RL v Nottinghamshire CC  EWFC 13.
The main thrust of F2’s argument was that the new information required to justify a reopening had to relate specifically to A’s allegation. C’s allegation was not new information in relation to A’s allegation; its impact on A, in that she was now willing to give evidence, was not sufficient.
Peter Jackson LJ gave the lead judgment, confirming the law in relation to reopening of fact in children’s cases is settled and found in Re E (Children: Reopening Findings of Fact)  EWCA Civ 1447 and Re CTD (A Child) (Rehearing)  EWCA Civ 1316.
In summary, the test to be applied upon an application to reopen a previous finding of fact has 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: (i) the court 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; (ii) it should weigh up all relevant matters, including 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; and (iii) 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 a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.
Ultimately, the appeal was dismissed.
The court recognised that this reopening application raised difficult issues. It was made by an entity that was not a party to the earlier family proceedings and it was not prompted by a concern about the integrity of the previous finding in isolation.
Rather, the judge had to grapple with the ramifications of granting or refusing the application for a just disposal of care proceedings concerning four children who are caught up in a damaging family breakdown.
The object of the proceedings is to protect the children from further harm and to achieve a soundly based welfare outcome. The extent of the investigation that is necessary to achieve that was a matter for the court’s judgement, applying correct legal principles and taking account of all the circumstances.
In reaching the decision to dismiss the appeal, the Court of Appeal analysed the case of Re RL.
Re RL involved an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child’s stepfather. It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it. However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings.
The Court of Appeal were clear in their conclusion that the approach of Re RL is wrong and should not be followed.
Two main reasons were given for this decision:
- A judge’s main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW  EWCA Civ 1054,  WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.
- More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at , cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.
Whilst some lawyers might not agree with the above conclusions, it will provide some clarity and certainty as the correct approach to be adopted in the future.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.