When can findings of fact be re-opened?

Children – Public Law

03 July 2023

There has been some uncertainty over the correct approach to the issue of when findings of fact can be re-opened. This was as a direct result of the judgment of Mostyn J in Re RL.

This uncertainty has been addressed in the recent case of Re J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465  where the Court of Appeal has definitively stated that the approach set out in the case of Re RL (RL v Nottinghamshire CC [2022] EWFC 13) should not be followed and roundly rejected its application of the civil res judicata principles to family cases, describing it as such an attempted application as misconceived.

The facts of the case, (as far as they are relevant) are that the M lived with the father’s 2 young biological children and an older child A (a step child of the father). In May 2019 A alleged that he had sexually assaulted her. The father was acquitted of all charges relating to this in the Crown Court in 2020.

In 2021, during private law proceedings between the father and the mother in relation to their 2 biological children B and C, the Family Court made no finding against the father on A’s allegation. A had been joined to the proceedings. A did not give evidence and played no part in the hearing.

Following the fact finding, contact was ordered. B refused contact but C’s contact progressed to overnight stays. Disputes between mother and father continued. In January 2022, D alleged that she had been sexually abused by the father. The LA issued care proceedings in April 2022.

The LA asserted that threshold was met on three possible bases: assault on C in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A. HHJ Skellorn KC allowed the LA’s application to reopen the fact finding in respect of A’s allegation.

The father appealed on five grounds. The fifth ground asserted that the judge was wrong 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“, following Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13.

The father’s principal 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. The law in relation to reopening of fact in children’s cases is settled and found in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316.

He set out that the test to be applied has three stages: First, the court considers whether it will permit any reconsideration of the earlier finding. If willing to do so, the court then secondly determines the extent of the investigations and evidence that will be considered. The third stage is the hearing of the review itself.

At the first stage, 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; 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 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. 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.

The appeal was dismissed. The court of appeal recognised that the judge had to grapple with the ramifications of granting or refusing the application in order to ensure a just disposal of care proceedings. The extent of the investigation necessary to achieve a soundly based welfare outcome was a matter for the court’s judgement, applying the correct legal principles and considering all the circumstances.

In recent authorities, the request to reopen arose from further information that related directly to the original finding. However, there are a variety of factual configurations from which a reopening request may arise. The scope of the jurisdiction is not confined to cases where the new evidence or information relates exclusively to the original finding.

In reaching its decision the Court of Appeal analysed the case of Re RL. In that case Mostyn J’s judgment contained a lengthy examination of the doctrine of res judicata in family proceedings. Though he accepted the Court of Appeal test was binding upon him and spoke of interpreting that approach, the Court of Appeal however found that the test he proposed was a different and narrower one.

The Court of Appeal stated that the approach in Re RL should not be followed. They gave two main reasons:

  1. A judge’s main responsibility is to decide the case in hand. The High Court and appeal courts may also give rulings on matters of law to ensure that the law is correct and accessible. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts. The analysis in Re RL was, and could be, of no legal effect [Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054]. Decisions that reformulate a binding legal test or set up a different test operate as a distraction and a drain on resources.
  2. It is a misconception that the 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. 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 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 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.

Therefore, the Court of Appeal could not have been clearer that the approach advocated by Mostyn J in Re RL is wrong and that the test is as per the settled law set out in Re E and Re CTD above. It may be that some lawyers agreed with Mostyn J and the approach he advocated. Some may not and consider the Court of appeal to be right. What can be said with certainty is that the issue has been clarified, and the position is clear, at least for now.

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