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IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT TAUNTON
Her Honour
Judge
Skellorn KC
TA22C50037
B e f o r e :
LORD
JUSTICE
PETER
JACKSON
LADY
JUSTICE
NICOLA DAVIES
and
LADY
JUSTICE
ELISABETH LAING
____________________
____________________
John
Tughan KC and Hugh Travers (instructed by Simon Lacey Law Associates) for the Appellant
Claire Wills-Goldingham KC and Steven Howard (instructed by Alletsons Solicitors)
for the 1st
Respondent
Local Authority
Aidan Vine KC and Victoria Hoyle (instructed by Daniells Family Law Ltd.) for A
Ellen Saunders (of Porter Dodson) for the
Children's
Guardian (by written submissions)
Hearing date: 20 April
2023
____________________
HTML VERSION OF APPROVED
JUDGMENT![](/images/contextdown.png)
____________________
Crown Copyright ©
This
judgment
was handed down
remotely
at 10.30am on 28 April
2023
by circulation
to the parties or their
representatives
by e-mail and by
release
to the National Archives.
.............................
Lord
Justice
Peter
Jackson:
Overview
- 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 step-daughter 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.
- At the end of the hearing we informed the parties that the appeal would be dismissed. I now give my
reasons
for
joining
in that decision.
The legal framework
- The law in
relation
to
reopening
findings
of
fact
in
children's
cases is settled. It is to be found in the decisions of this court in
Re
E (
Children:
Reopening
Findings
of
Fact)
[2019]
EWCA
Civ
1447, [2019] 1 WLR 6765 and
Re
CTD (A Child) (
Rehearing)
[2020]
EWCA
Civ
1316, [2020] 4 WLR 140. These authorities endorse the decisions of Hale
J
in
Re
B (Minors)(Care Proceedings: Evidence) [1997] 2 All ER 29, [1997] Fam 117, [1997] 1 FLR 285, [1997] 3 WLR 1 and Munby P in
Re
Z (
Children)
(Care Proceedings:
Review
of
Findings),
[2014] EWFC 9, [2015] 1 WLR 95, [2014] All ER (D) 143.
- 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.
- As Mr Aidan Vine KC rightly submitted, the
requirement
for 'solid grounds' is a part of the evaluation that the court must carry out. It is not a shorthand substitute for it.
- In
Re
W (
Children:
Reopening:
Recusal)
[2020]
EWCA
Civ
1685, [2021] 2 FCR 793 at [28], I said this:
"It is rare for
findings
of
fact
to be varied. It should be emphasised that the process of
reopening
is only to be embarked upon where the application presents genuine new information. It is not a vehicle for litigants to cast doubt on
findings
that they do not like or a substitute for an appeal that should have been pursued at the time of the original decision. In
Re
E at [16] I noted that some applications will be no more than attempts to
reargue
lost causes or escape sound
findings.
The court will
readily
recognise
applications that are said to be based on fresh evidence but are in
reality
old arguments dressed up in new ways, and it should deal with these applications swiftly and firmly."
- As I noted in
Re
E at [50], the approach to applications to
reopen
is now well understood and there is no
reason
to change it. During the hearing of this appeal, counsel agreed that the
judge
in the case, Her Honour
Judge
Skellorn KC, directed herself correctly and they confirmed that in their experience the courts are having no difficulty in applying the guidance that has been given. That is also the experience of this court: applications for permission to appeal give no indication that the practice of the last 25 years needs
revision.
- I mention this because it has been necessary on this appeal to consider a first-instance decision – RL v Nottinghamshire County Council [2022] EWFC 13, [2022] 2 FLR 1012, [2022] 4 WLR 103 – that takes a different approach. That decision should not be followed for
reasons
given at the end of this
judgment.
The
relevant
background
- M's
relationship
with F1 lasted between 1999 and 2012. Her
relationship
with F2 lasted between 2012 and September 2019.
- In May 2019, A, who was then 13 years old, told her teachers that F2 had sexually touched her the night before. She
repeated
the allegation in an ABE interview on the following day. A then went to live with F1. Until September 2019, M defended F2 and sought to persuade authorities that A was unreliable. Since then she has supported A's allegations. A
returned
to live with M in August 2021.
- In November 2019, F2 made an application for a child arrangements order in
respect
of C and D. M obtained a non-molestation order against F2, alleging that he had harassed her and sexually abused A. M initially supervised contact between F2 and C and D. This then moved to a contact centre before ceasing altogether.
- In February 2020, F2 was charged with sexually assaulting A and the family proceedings awaited the outcome. In October 2020, F2 was acquitted at the Crown Court after a hearing at which both he and A gave evidence.
- In November 2020, the family court decided that a
fact-finding
hearing was now necessary. A was
joined
as a party, having indicated that she would give evidence. A
Re
W assessment was ordered but A then decided she did not wish to give evidence. Against her opposition, she was discharged as a party following an oral application made by F2 at a hearing on 26 May 2021. At that stage A's ABE interview had not been viewed by the court.
- A
fact-finding
hearing then took place before His Honour
Judge
Edward Richards. The allegations made by M against F2 were of a sexual assault on A in May 2019 and of multiple incidents of coercive and controlling behaviour against M throughout their
relationship.
M and F2 were legally
represented
and gave evidence. The
judge
viewed the ABE interview and
read
a transcript of A's evidence at the criminal trial. In a
judgment
given on 4
June
2021, he made none of the
findings
sought by M. He was critical of the evidence given by both parents, more so of M than F2.
- Following the
fact-finding
hearing, orders were made providing for contact between F2 and C and D. C effectively
refused
contact, but D's contact went ahead and eventually grew to include overnight stays. Disputes between M and F2 in this period were so fierce that the
Children's
Guardian undertook a risk assessment under s 16A of the
Children
Act 1989 and made a
referral
to the local authority.
- In
January
2022, D alleged that she had been sexually abused by F2. In April 2022, the local authority issued care proceedings.
The application to
reopen
- In September 2022 the local authority applied to
reopen
the 'non-
finding'
made in
respect
of A. (It makes no difference in principle that it was a non-
finding
as opposed to an inculpatory
finding
or an exoneration.) The application was supported by M, the
Children's
Guardian and A. It was opposed by F2. F1 took a neutral position.
- The matter, which would have been listed before HHJ Richards had he not moved to another court area, came before HHJ Skellorn KC on 3 November 2022. The first issue that arose was that F2 suggested that the court needed to conduct a fresh
Re
W assessment of A before the question of
reopening
could be decided. On 7 November 2022, the
judge
gave her
judgment
on that matter: she decided that she wanted to determine the local authority's application to
reopen
before commissioning any
Re
W assessment. This decision was the object of the first ground of appeal, but the ground was not pursued before us, wisely in my view, and I need say no more about it.
- The
judge
then heard argument on the
reopening
application on 14 December 2022 and gave a
reserved
judgment
on 22 December 2022 in which she explained why she was granting the application.
The
judge's
decision
- In a
judgment
of high quality, the
judge
set the
factual
and procedural scene, accurately identified the applicable law, and summarised the parties' arguments. On F2's part these included a
reliance
on the decision in
Re
RL, which Mr Hugh Travers, who then appeared as advocate, argued underscored the importance of maintaining the legal protections surrounding decided cases unless extraordinary circumstances arise to undermine those protections.
- The
judge's
analysis appears between paragraphs 61 and 77. She noted that it was suboptimal that the
reopening
application was not before HHJ Richards. She further noted that she needed to gain a clear understanding of the previous family proceedings and the shape of the present litigation in order to address the application properly. She set out in detail the public policy arguments in favour of finality of litigation in general, and she asserted that F2 had been through two trials and was entitled to finality unless there was good
reason
to
reopen
A's allegation. She then addressed the policy
reasons
favouring sound
factual
findings.
She asserted that she was entitled to weigh up all
relevant
matters, as identified in the authorities, and should not allow past issues to be
revived
in a wasteful and unfair way. She
reminded
herself that solid grounds were
required
before a
finding
could be
reopened.
- Although the parties in the two sets of family proceedings were not identical, the
judge
accepted that the issue
relating
to A was the same as before. She noted that the proposed
reopening
would be one part of a wider
fact-finding
exercise designed to inform threshold issues for the four subject siblings. She described A's allegation as dovetailing with D's allegation and with the alternative allegations that M had influenced each child to make allegations or that the allegations sprang from significantly harmful maternal parenting, including negativity towards F2. She noted that the allegations were now made by the local authority and not by M, although she supported the case against F2.
- The
judge
then came to her analysis, which needs to be fully set out to show the quality of her
reasoning.
"71. … In my assessment, the truth or falsity of A's allegations would be an integral, important component of the global Threshold exercise the LA now intends to place before the court. It would not be possible to achieve clarity on the various, interlinked issues without
returning
to them. It is technically possible, as Mr Travers maintains, for the court to hear a
fact
finding
to determine D's allegations and the secondary questions about the aetiology of those allegations without
reopening
A's allegations, but in my assessment that would be an incomplete enquiry and carry with it the potential for skewing as a
result.
I have no doubt that a partial trial would
repeatedly
run headlong into the issues I am considering in this
judgment.
The one thing that all parties in this matter are agreed about is that there should be an alternative-basis threshold criteria before the court in order to consider all of the competing cases. M says A and D have suffered significant sexual and emotional harm at the hands of F2 and that future unrestricted contact would pose an ongoing risk of the same. F2 does not assert a positive driver for what he says were false allegations by A but he clearly does not rule out M having been part of the aetiology. Insofar as C and D are concerned, it has been F2's stated case (for years) that his
relationship
with C and D has been marked by hostility, negative influence and alienation. A's allegations are at the very heart of the parental separation and the dysfunctional dynamics which have, on any
reading
of the papers impacted upon C and D over the years leading up to D's apparent complaints. On balance I am not able to accept Mr Travers' submissions that the exploration of an alternate basis threshold is amply achievable without
reopening
A's allegations. I am sceptical about that suggestion and favour Ms Smith's submission that to take that approach would
result
in the case circling round a fixed tether point (the position at law that F2 has not abused A in circumstances where doubt is cast on the accuracy of that).
72. The paper or intellectual merits of a new, wide
fact-finding
exercise cannot, of course, be determinative of the application; something further would be necessary. As Mr Travers rightly submits, litigation finality should not be overridden by the
fact
that the LA (or a later court) may consider it forensically preferable to approach new litigation on a basis which
required
reopening.
The wide powers of "issue management" are irrelevant here. Instead, focus must fall upon on [sic]: 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. Although many decided cases on
reopening,
especially those
relating
to alleged inflicted injury are predicated upon new evidence, the test does not strictly
require
new 'evidence'. Evolving or emerging information or knowledge can suffice. Hence the
Re
B list contains (the third prompt of three): whether there is any new evidence or information casting doubt upon the accuracy of the original
findings.
That is one item on a list of potential features which I assess to be (i) guidance and (ii) non-exhaustive. I therefore understand the
Re
CTD concepts of
reason
to think and solid grounds to be capable of being established with or without new evidence but – in either scenario – there must be a proposed, changed litigation landscape with identifiable and tangible markers of something new 'to hear' or 'to be
factored
into' the assessment and that must show prospects of yielding a different outcome (again, this does not have to be an entire
reversal
of outcome). If those features exist, they are enough to cast doubt upon the accuracy of the original
finding
and without them, a
reopening
would be the mere
re-hashing
of a case and would offend
justice.
73. Considering (a) whether the previous
findings
were the
result
of a full hearing in which the person concerned took part and the evidence was tested in the usual way. There was certainly a full hearing. If 'the person concerned' is the applicant for
reopening,
then I
record
that the LA did not participate in the original hearing. I accept Mr Howard's characterisation of a LA as a party with a unique status in the bringing of care proceedings (an authorised applicant and the emanation of the State). If, alternatively, I consider the complainant, A, to be 'the person concerned' in the above extract then it is a matter of
fact
that, without her consent, A was discharged as a party shortly before her allegations were determined and she was not
represented.
Nor was all of the evidence tested: in the normal way (which I interpret as meaning an adversarial process which afforded interested parties the opportunity for cross examination, to
receive
advice and to take instructions on the evolving evidence and to have submissions advanced on their behalf at the close of the evidence). Here, the complainant A was (i) a potential child witness and (ii) initially, a child party with litigation capacity. Insofar as a
Re
W analysis determined that A would not give further evidence under cross examination, that was not an unusual order in this context; it was consensual and no party criticises it here. It was therefore a standard variation for a case involving the allegations of a child, but it did not
represent
the full trial process I consider is envisaged within the test.
74. Considering (b) if so, whether there is any ground upon which the accuracy of the previous
finding
could have been attacked at the time, and why therefore there was no appeal at the time. If my consideration of parties who may be 'the person concerned' is accurate then, technically, this guideline may not even be engaged as it is a secondary enquiry contingent upon participation in the trial process. I will address it in any event. Whilst
reiterating
the caveats expressed in paragraph 63 above, I have formed the view that there are prima facie features of the case management and the
fact
finding
judgment
which may have had the potential to have founded an appeal.
(a) I say this firstly in
relation
to the decision to discharge A's party status and her subsequent inability to participate at the hearing. I accept the submissions that
representation
for A may have made a considerable contribution to the hearing in
June
2021. A's advocate would have been using both the child's 'static' complainant evidence and any 'dynamic' instructions
received
during the hearing. This is not an unusual situation in family cases and a court is always able to categorise any information
received
(it does not mistake submissions for evidence). Both adults could have been cross-examined; submissions directed to the quality of the processes during ABE and the criminal trial and submissions directed to the considerable volume of evidence from several sources which came
relatively
late into the
fact-finding
bundle. I do not accept Mr Travers' argument that it was a standard course to end the party status (and
representation)
of a competent child party upon the making of a
Re
W determination against oral evidence. Participation directions for
children
and vulnerable witnesses under FPR r.3A and PD 3AA are not
restricted
to the giving of oral evidence. The attendance note from 26 May 2022 does not suggest that those issues were canvassed at that hearing. I also note the consensus that the application to discharge A was raised in the face of the court and had to be opposed by counsel without the benefit of notice, or a formal application or the opportunity to take instructions. I
refer
to my
judgment
dated 6 November 2022 which
recited
at some length the issues engaged in a
Re
W assessment, a number of which
reflect
the manner in which the evidence can be explored and critiqued should there be no cross examination of the child. It seems highly likely that A's team would have advanced her
Re
W position on the assumption that their
representation
would continue and they would be able to balance the absence of live or pre-
recorded
cross examination of their client with a detailed exposition of her account and her case during the trial.
(b) The criminal trial transcripts raise indisputable points of procedure in
respect
of A's evidence as a child and vulnerable witness (pursuant to YJCEA 1999). Questions that were poorly formulated by
reference
to the Advocates' Gateway (TAG) are self-evident. Neither counsel nor the Crown Court intervened when A stated that she had not been afforded a chance to
refresh
her memory. The previous version of ABE was in force at the time. It provides: [the
judge
then quoted the passage from the ABE guidance saying that witnesses are entitled to
read
their witness statement before giving evidence and that viewing the
recording
ABE interview is the equivalent of that].
(c) The
June
2021
judgment
suggests that the analysis (
rejection)
of A's evidence did
rely,
in part, upon:
(i) the criminal transcripts;
(ii) the initial account given by M that A was not a truthful complainant;
(iii) allegations made by M and/or F2 about A's character, experiences, motivations and veracity that would have been capable of challenge and/or analysis by use of material in the bundle to cross examine and make submissions.
75. I emphasise that I am not effecting an appeal decision. I have accepted the LA's (carefully boundaried) submissions that there are discernible and tangible flaws within the 2021
fact
finding
material and that this occurred in conjunction with A not having
representation
to consider and address those matters by the date of trial. Each problem is potentially more significant in the presence of the other. There are other points arising from the 2021 papers but they are less precise than the ones collated above and, therefore,
require
more speculation. I do not take them into account for the purposes of this
judgment.
A had no locus to appeal the non-
findings
(unless by harnessing them to a procedural appeal on discharge of her party status). An appeal was not therefore, impossible, but there were features of this case that sets it apart from cases where a party who has played a full role in a trial may seek to use a
reopening
remedy
having been well placed to make a timely appeal but having failed to do so. I do not consider that this case chimes with the descriptive warning in
Re
W that
reopening
should not be: a vehicle for litigants to cast doubt on
findings
that they do not like or a substitute for an appeal that should have been pursued at the time of the original decision [old arguments dressed up in new ways].
76. In considering (c) whether there is any new evidence or information casting doubt upon the accuracy of the original
findings
I have noted that in several passages of their written skeleton arguments, it has been suggested that the
fact
that A now wished to give evidence and was prepared to do may amount to new evidence. The arguments contemplate that A might, now, speak to her own allegations (and any points of challenge made by F2) and that this would
represent
evidence which had not been capable of being secured in
June
2021. As explored during the hearing, and conceded by the LA, I do not accept that that scenario alone would satisfy the test for
reopening.
The evidence that a person might give in this scenario evidence at a future time is not new evidence. That analysis would fall foul of the mere hope/speculation barrier. As
recorded
above, the LA conceded orally that it would be unthinkable for the Family Court to entertain the
reopening
of
judgments
on the basis that a child witness had gained maturity,
rejected
a past
Re
W decision, or simply said they 'now' wanted to give evidence. Oral submissions on behalf of A, M and the guardian took no issue with Mr Howard's concession on this point. Similarly, some passages of the written skeletons sought to characterise the emergence of D's allegations as new evidence which could not have
reasonably
[sc. have been] discovered at the time (in
relation
to A's allegations). Again, I do not accept that characterisation. It would not be permissible for a court to take into account the two sets of allegations (similar or not) without more. To have any notional, potential
relevance
to A's allegations D's allegations would have to be proved to the
civil
standard and a court would have to be satisfied that they add something by way of propensity or similar
fact
evidence by
reference
to the caselaw as to what is permissible. Those are complex areas of law which are applied on a case-specific basis. It is very far from certain that the proof of either child's allegations would be accepted as having corroborative or probative value for the other. As Mr Howard conceded, a floodgates situation may arise should allegations post-dating a
fact-finding
become an acceptable
reason
for allowing the
reopening
of cases.
77. The LA's application does not raise those latter two points in isolation, however. It raises a composite application, as analysed throughout this section and suggests that, as parts of a whole, the issues should lead to the grant of permission to
reopen
A's allegations. On a fine balance and taking into account all
relevant,
permitted
facts
and matters visible in this case at the date of this
judgment,
I agree. There are grounds to consider that the non-
findings
need to be
revisited.
A
reopening
will allow an unhindered consideration of the alternative-basis threshold with a view to achieving a
reliable
global
factual
matrix for the
children.
This course of action brings similar degrees of advantage and risk to both adult protagonists and will provide a full
judicial
consideration of their competing cases. A would be afforded
representation
and participation directions and could present her full case including (i) advancing her own cross examination of F2 and M; (ii) taking cross examination herself and (iii) advancing submissions. This would not be
restricted
to her sexual allegations: A has standing in
relation
to the other issues the LA wishes to litigate as a whole alternative-basis Threshold. Moreover, A's own welfare is engaged as a subject child, alongside that of her sibling and half siblings."
- By a subsequent case management order, the
judge
provided for a substantial hearing in
June
2023
and gave detailed preparatory case management directions.
The appeal
- On behalf of F2, five grounds of appeal were prepared by Mr Travers. In summary, the court was wrong:
(1) To
refuse
a
Re
W assessment before determining the
reopening
application.
(2) To consider the discharging of A's party status to be a
relevant
issue.
(3) To consider criticism of how A was cross-examined in the criminal proceedings to be
relevant.
(4) To conclude that a
fact-finding
exercise in
respect
of D's allegations and their aetiology would be incomplete without the
reopening
of A's allegations.
(5) To
reopen
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": Mostyn
J
in RL v Nottinghamshire CC [2022] EWFC 13, [2022] 2 FLR 1012, [43].
- Permission was granted on all grounds by King LJ. She observed that, although on their own grounds 1-4 would have little prospect of succeeding, the decision in
Re
RL arguably did not sit comfortably with
Re
E and
Re
CDT. She accordingly granted permission on all grounds on the basis that there was a compelling
reason
for an appeal to be heard and to enable this court to have the complete picture before it.
- As I have said, Ground 1 was not pursued by Mr
John
Tughan KC, who now leads Mr Travers. We also heard submissions from Ms Claire Wills-Goldingham KC, leading trial counsel Mr Steven Howard, and from Mr Vine KC, leading trial counsel Ms Victoria Hoyle. We have also had the benefit of a skeleton argument from Ms Ellen Saunders for the
Children's
Guardian and of position statements on behalf of M and F1, indicating their support for the position of the local authority. We are grateful for all these contributions.
- For F2, Mr Tughan accepted that the
judge
had identified the law correctly, but argued that she had not correctly applied it. He submitted that the 2021 decision is contained in a solid, unappealed
judgment.
M had not been a credible witness, and A had given different accounts and had told some lies. She had made no new allegations and there was no new information about her original allegation. That position was static and would not change at a
rehearing.
The local authority had accepted that the mere
fact
that A now wishes to give evidence cannot routinely lead to a
reopening.
There was no challenge at the time to A's discharge as a party. The
judge
had been wrong at paragraph 74 to put weight on that issue or on the manner of A's criminal cross-examination: grounds 2 and 3. Likewise, she had been wrong at paragraph 71 to fail to
recognise
that it would be possible and normal to hear the case in
respect
of D (both against F2 and M) without
reopening
the case about A: ground 4. The
judge
was correct that the truth or falsity of A's allegation might be
relevant
to D's allegation, subject to proper analysis, but she had given insufficient weight to the existence of the previous
finding,
whose significance was not waved away by the local authority's intervention. The difference in parties was not irrelevant but it was not of great significance.
- As to ground 5, Mr Tughan made clear that, despite the way in which the ground is drafted, he did not seek to support the analysis in
Re
RL. He merely
relied
upon it as a
recent
emphasis on the importance of there being something new for the court to consider. This
requirement
is found in
Re
E at [28], citing
Re
B:
"The court will want to know… (c) whether there is any new evidence or information casting doubt upon the accuracy of the original
finding."
And in
Re
W at [28],
referring
to "genuine new information": see paragraph 9 above.
- Mr Tughan's main argument was that the new information
required
to
justify
a
reopening
had to
relate
specifically to A's allegation. D's allegation was not new information in
relation
to that, and the
fact
that it may have impacted upon A, so that she was now willing to give evidence, is not sufficient. The
judge
was wrong at paragraph 72 to say that evolving or emerging information or knowledge can suffice with or without new evidence.
- Mr Tughan therefore argued that these matters caused the
judge
to
reach
the wrong conclusion at paragraph 77.
Factors
that were permissible for the
judge
to take into account were not likely to lead to a different outcome in
respect
of A's allegation and the local authority's application should have been
refused.
- For the local authority, Ms Wills-Goldingham
responded
that the appeal now concerned the exercise of a discretion. The
judgment
was careful and the decision case-sensitive. The
judge
was right to ensure that assessments and decisions about the
children's
future were based on a solid
factual
matrix, otherwise there was a
real
risk of an incorrect decision being made in
respect
of D. She was also right to express some concern about the circumstances in which A had been discharged as a party in the previous proceedings. Her analysis of the potential of the non-
finding
to skew the global threshold exercise was sound. As to
Re
RL, although local authorities might be expected to welcome a narrowing of the
reopening
gateway, the established test is understood by them and there is no clamour for change.
- For A, Mr Vine submitted that the
result
that the
judge
reached
was well within her discretion. It is not necessary for the further evidence to
relate
specifically to A's allegations. They are at the heart of the parental separation and the present family dynamic and are clearly important to the outcome.
Re
RL introduces an element of the test for appealing out of time (not available with
reasonable
diligence) which is inconsistent with the law as stated in
Re
E. There is no indication that the current approach is causing problems at the Bar, and the
judge
had no difficulty in applying it.
Conclusion
- 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. I
recognise
that it is hard on F2 that he should be facing the prospect of
responding
to A's allegations for a third time, but his interests are not the only ones in play.
- In my view, the
judge's
response
to this difficult decision cannot be faulted. She identified the law correctly and analysed the application with scrupulous care. She did not omit any
relevant
matter or take account of any irrelevant matter, and she
reached
a principled decision that was plainly open to her.
- Ground 2 contends that the
judge
was wrong to treat the circumstances of A's discharge as a party to the previous proceedings as
relevant.
Mr Tughan rightly did not press the argument in such absolute terms, instead submitting that the
judge
attached too much weight to this
factor,
but I do not accept that. As the
judge
said, the court was obliged to gain a clear understanding of the previous proceedings. The degree to which A had participated in them was undoubtedly a
relevant
matter, however it had come about, as was the
reason
why no appeal was brought at the time. The weight to be given to them was a matter for her, and it was not submitted that her approach fell outside the range of
reasonable
assessments.
- The position is the same with ground 3. The
judge
was similarly obliged to gain an understanding of the nature of A's evidence at the criminal trial and was entitled to take a view of the nature of the cross-examination when deciding the application that was before her.
- Ground 4 argues that even if A's allegation was true it would not necessarily be probative of D's allegation, and accordingly it would not be bound to affect the outcome one way or another. Accordingly, solid grounds for
reopening
have not been shown. Mr Tughan rightly accepts that, were the matter being heard for the first time, each allegation might ultimately be capable of supporting the other. That evidently does not mean that
reopening
must occur, but it is a feature that the
judge
was entitled to weigh up, and I
find
her treatment of this issue at paragraph 71 to be convincing. It would of course be theoretically possible to determine D's allegation in isolation, but doing so would lead to considerable difficulty in assessing the alternative case against M, which concerns both D and A; further, the truth or falsity of both allegations are capable of being mutually probative.
- Ground 5 now leads to a more limited argument than had appeared likely when permission was granted. The
judge
did not follow
Re
RL (discussed below) and if it was ever suggested that she should have done, that argument has now been disavowed. Instead the issue is whether the new evidence or information must
relate
exclusively to the original
finding
if a
reopening
is to occur.
- It is true that in the
recent
authorities the
request
to
reopen
arose from further information that
related
directly to the original
finding.
In that
respect
the present case is different. However, that
reflects
the variety of
factual
configurations from which a
reopening
request
may arise, and it is not a
reason
to confine the scope of the
jurisdiction.
The
judge
was aware of the risk of opening the floodgates to inappropriate applications, but she rightly directed herself at paragraph 72 that the potential features to be taken into account are not exhaustive, nor, I would add,
restrictive
in the way that is now proposed. Her self-direction at the foot of that paragraph was in keeping with the guidance given in the authorities and was appropriate to the particular situation in the present case.
- I therefore
reject
each of the four grounds of appeal, and finally turn to the decision in
Re
RL.
RL v Nottinghamshire County Council
- This was 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:
"42. The authorities identify two types of case where
justice
provides an exception to an estoppel preventing
re-litigation
of the same issue between the same parties:
i) First, and obviously, an anterior
judgment
can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.
ii) Second, an anterior
judgment
can be challenged on the ground that new
facts
have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated:
"….there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material
relevant
to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by
reasonable
diligence have been adduced in those proceedings. One of the purposes of estoppel being to work
justice
between the parties, it is open to courts to
recognise
that in special circumstances inflexible application of it may have the opposite
result
…"
This exception echoed the well-known decision of the House of Lords in Phosphate Sewage Company Limited v Molleson (1879) 4 App Cas 801 where Lord Cairns LC held that an anterior
judgment
can be challenged where additional
facts
had emerged which 'entirely changes the aspect of the case' and which 'could not with
reasonable
diligence have been ascertained before.' In Allsop at [26] the continuing validity of this exception was affirmed by the Court of Appeal.
43. It therefore seems to me that
Jackson
LJ's test of "there must be solid grounds for believing that the earlier
findings
require
revisiting",
ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that "solid grounds" would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with
reasonable
diligence have been ascertained before.
…
45. For my part looking at the matter from first principles I cannot see any
reason
why the general substantive law of
res
judicata
should not apply to
children's
cases. …
…
49. I naturally accept that
Jackson
LJ's test is binding on me. I completely agree that there should be a Stage 1 form of permission filter. I completely agree that on a
rehearing
application mere hope and speculation will never be enough to gain permission. I am merely suggesting an interpretative
reconciliation
between the solid grounds test and the general law such that solid grounds will normally only be demonstrated where either the fraud exception, or the special circumstances exception, is satisfied."
- Although Mostyn
J
spoke of interpreting the approach set down by this court conformably with 'the general law', he
recognised
that the test that he proposed is a different and narrower one. At a number of points he speaks of the mother's application failing…
"whether I apply the general law test of special circumstances or a more liberal interpretation of "solid grounds"."
- The approach in
Re
RL should not be followed for two main
reasons.
- 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 [2015]
EWCA
Civ
1054, [2015] 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 [28], 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.
Outcome
- The appeal is dismissed.
Lady
Justice
Nicola Davies:
- I agree.
Lady
Justice Elisabeth Laing:
- I also agree.
_______________
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