The recent judgment in CTD (A Child: Rehearing)  EWCA Civ 1316 provides a useful summary of the relevant steps a court must take when considering an application to reopen findings of fact in a family case.
This appeal concerned care proceedings involving 4 children that were originally concluded in August 2015 and then reheard in 2019.
In judgment given on 19 August 2015, the court found that a family friend (AO) had solely caused numerous serious injuries to the youngest child (C) between mid-April 2014 and the weekend of 7th September 2014. These injuries occurred during times when AO was caring for C on behalf of her parents (M and F). C was less than 2 years old at the time.
In coming to this conclusion, the Judge was said to have noted the following:
- That C was in the care of both AO and M and F when she sustained her injuries;
- That M had done her best to tell the truth as to what happened and F was not deliberately seeking to mislead the court; and
- That there were inconsistencies in AO’s evidence, and AO had accepted that when C was returned to her parents on the 7th there was visible swelling to her leg, that AO had persuaded the parents not to take C to hospital that evening, and that AO’s behaviour towards the parents indicated they had something to hide.
The 2019 rehearing
In later proceedings concerning a number of children (including the four children of M and F and a child of AO) the court had heard evidence and made findings that M and F had perpetrated serious sexual and physical abuse towards all four children. The Judge found that this abuse began before C suffered her injuries between mid-April 2014 and the weekend of 7th September 2014.
The rehearing in 2019 was subsequently required due to the court not having the above findings or evidence available to it when it gave judgment in August 2015, with the Judge in that hearing having accepted M and F’s evidence over AO’s at the time.
In judgment given on 1st May 2019 (as the result of the rehearing) the Judge confirmed the finding that the last injury to C (a fracture to the femur inflicted on the weekend of 7th September 2014) had been caused by AO, but amended the findings to four earlier injuries suffered by C (from April to September 2014) and ruled that they had been caused by either AO or F (what is known as a “pool finding”).
In coming to this decision, the court gave the following reasons:
- In considering whether to amend the earlier 2015 findings, the task of the court is not to re-try the issue “in toto” but rather to consider whether the findings should be the subject of amendment having considered the new information available;
- That although the new evidence indicates that F was capable of inflicting the injury C sustained on 7th September, AO remains the more likely perpetrator of that injury (having considered her account to the police, her statement before the court, and concessions in oral evidence); and
- That the previous Judge’s finding was consistent with the medical evidence presented.
As regards the previous findings made as to the other injuries sustained by C before 7th September, the court stated the following:
- That the findings should be amended having considered the new evidence (especially when considering the previous Judge’s reliance on M and F’s evidence in 2014);
- That the allegations made by the children regarding the violent conduct of F towards C were corroborated by F’s admissions and the evidence given by the other adults and expert witnesses; and
- In having considered all the evidence available at the rehearing, the previous findings regarding the earlier injuries all being caused by AO must be amended to a finding that they were caused by either AO or F.
In coming to their decision on this amendment to the findings, the court noted the difficulties that this amendment may provide, and stated that although it is less likely a child will be deliberately injured by two separate adults rather than one, this does occur.
AO’s appeal of the rulings made in the rehearing in 2019 (and request that this matter was remitted for a rehearing) was allowed to be heard on the following grounds:
- That the Judge adopted a standard of review in relation to the earlier findings that gave excessive weight to the earlier Judge’s ruling and insufficient weight to the evidence which had caused him to reopen the findings made by her;
- That the Judge adopted a standard of review in relation to the earlier finding that was incorrect in so far as it led him to a conclusion that was not supported by any of, and was contradicted by some of the evidence; and
- That in adopting the incorrect standard of review the judge reversed the standard of proof, requiring the applicant/appellant to demonstrate that the original findings were wrong rather than requiring the local authority to prove them.
AO’s appeal was dismissed for the following reasons:
- Although the Judge’s description of their task as ‘not re-trying the issue in toto’ was not correct, the judgment shows that this misdirection did not lead to any error of substance;
- As regards the submission that there was a failure to adequately address and act upon the arguments made on behalf of AO in the changed circumstances where the parents had been revealed as having caused serious sexual abuse and physical injury to the children, it was not accepted that the Judge failed to address the arguments made sufficiently;
- As regards the last injury, it was undoubtedly the case that C suffered a significant injury in the care of AO and in the absence of the parents, with this being supported by the medical evidence and assessment of AO’s culpability and credibility (having heard AO’s evidence). The conclusion that AO was responsible was based on a process of reasoning that cannot be successfully challenged; and
- Put together, it is impossible to say that the Judge was wrong to conclude that there was a real possibility that AO had caused the earlier injuries, and in a case where the revelations about the parent’s behaviour was striking, the court were right to thoroughly rehearse it’s earlier findings, and although it may have reversed those findings, its reasoned analysis of the evidence led them to instead amend them, notwithstanding AO’s appeal.
The three-stage approach
In dismissing the appeal, the court set out the proper three-stage approach to considering applications for rehearing family cases:
- It asks whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting;
- If that hurdle is overcome, it decides how the rehearing is to be conducted;
- It rehears the matter and determines the issues;
Stage 1: Has the applicant shown that there are solid grounds for believing that the previous findings require revisiting?
The court reaffirmed the approach taken in Re E (Children: Reopening Findings of Fact)  EWCA Civ 1447 [28-34], where the court stated that although there is no strict rule of estoppel in children cases, the decision to reopen previous findings and allow renewed litigation must be a reasoned one, with the following guidelines (per Re B (Children Act Proceedings: Issue Estoppel)  Fam 117 ) serving as a framework:
- The court must firstly consider all the relevant public policy considerations in support or against reopening the matter;
- The court may wish to consider the importance of the previous findings in the context of the current proceedings; and
- The court must consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that made in the earlier trial.
It was also noted in Re E that the court will also need to be satisfied that the challenged finding has actual or potential legal significance (in considering what legal or practical difference may be made to the arrangements of the children concerned).
Stage 2: If that hurdle (i.e. Stage 1) is overcome, how should the rehearing be conducted?
This stage is essentially one of robust case management. The court noted that any rehearing must not become a “free-for-all” where evidence is repeated and issues reopened without good reason. Sometimes all the aspects of a case may need to be reheard, but other times it may simply be that one aspect should be reheard whilst the rest remains undisturbed.
It is important that stage 1 and 2 are methodically dealt with to prevent unmerited attempts to relitigate previous proceedings whilst allowing cases that need to be reheard to be done so in a proportionate, fair, and effective manner.
Stage 3: Rehearing the matter and determining the issues
In setting out their guidance on this stage, the court stated at :
“At this stage the issues are determined afresh on the basis of the whole of the evidence.
The description of the event as a rehearing rather than a review is deliberate: once a decision has been taken to reopen the case the court approaches the task of fact-finding in the conventional way and reaches its own conclusions. It does not give presumptive weight to the earlier findings, as that would risk depriving the exercise of its fundamental purpose of doing justice and achieving the right outcome for the child.
The burden of proof remains throughout on a party seeking findings of fact to prove them to the civil standard in the normal way. The court assesses the evidence on its merits, without privileging earlier evidence over later evidence, oral evidence over written evidence, or contentious evidence over uncontentious evidence.
At all events, a rehearing is quite distinct from an appeal, in which findings stand unless they are shown to be wrong.”
Although it did generally accord with Birmingham City Council v H (No. 2)  EWHC 3062 (Fam) [42-45; 55-56] and Re ZZ  EWFC 9 , the court gave the above paragraph to clarify (and simplify) the description and purpose of a rehearing.
To conclude, the Court of Appeal have provided useful guidance on how courts should approach applications for reopening findings of fact in a family matter, bringing the relevant authorities together and simplifying the stages to be taken.
The Family team at Becket Chambers provides representation and advice in all areas of public children law and accepts instructions from all parties to care proceedings. If you require advice or assistance with a public children law matter, do not hesitate to contact our team at firstname.lastname@example.org.