This was a public law case where I, as a pupil barrister shadowed one of the barristers on an application for the reopening of fact-findings at which reopening was directed.
This case has not been reported and every effort has been made to anonymise the parties and the child(ren) and ensure confidentiality. Details of the case have not been used in this article.
This article focuses on the legal framework for reopening of fact-findings.
What is a fact-finding hearing?
For the benefit of new practitioners, a fact-finding hearing is a separate hearing or sometimes held within a composite final hearing which attempts to establish the truth of allegations made by one or both parties. The court requires the factual matrix to be established for several reasons including:
For Cafcass to prepare a section 7 report
For one or both parties to be referred to external organisations for support
For the court to adequately consider the welfare checklist in Practice Direction 12J
Legal Framework
In the recent case of Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465, Jackson LJ confirmed that the law was settled and is to be found in the decisions of Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316 and Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447.
In the Court of Appeal case, Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316 at [2], Jackson LJ reviewed the authorities and distilled the approach to reopening of fact findings, essentially setting out a three stage process to be followed in a family case:
Rehearings in family cases
“When an application is made to reopen findings of fact in a family case the court proceeds in three stages:
(1) It asks whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting.
(2) If that hurdle is overcome, it decides how the rehearing is to be conducted.
(3) It rehears the matter and determines the issues.”
Re E ( Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 set out the considerations for the first stage, that there is no strict rule of estoppel in children cases but a decision to allow past findings to be relitigated must be a reasoned one and that the considerations identified by Hale J in Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117 at [128] provide a useful framework:
“(1) The court … should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of fact which turn out to have been erroneous; and (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No.2) [1967] 1 AC 853, 947, “must be applied so as to work justice and not injustice.”
(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 … (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.”
The principles set out in Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465 at [7] are:
“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.”
Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685 at [28]:
“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.”
Conclusion
The court’s approach must strike the balance between preventing the unmeritorious attempts to relitigate settled findings while making allowances for cases which genuinely require reconsideration in a proportionate way to enable fairness to all parties, Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. Whereas the experts will provide a report based on considering the parties’ accounts as though they were genuine, the court will not be so constrained and will have to assess whether the accounts are credible at all. Notwithstanding this, the court must balance the consideration of genuineness with the parties’ Article 6 rights to a fair trial which are absolute rights. Therefore, it must be considered whether evidence should be assessed as part of the wider evidential canvas.
Resources and judgments:
Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465
Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316
Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447
Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117
Re W (Children: Reopening: Recusal) [2020] EWCA Civ 1685, [2021] 2 FCR 793
This article is not to be viewed as legal advice and is simply for educational purposes.
In re B. (MINORS) (CARE PROCEEDINGS: ISSUE ESTOPPEL) [1997] Fam. 117
