Re L and another (Children) (Preliminary Finding: Power to Reverse)

JurisdictionEngland & Wales
JudgeLady Hale,Lord Neuberger,Lord Sumption,Lord Kerr,Lord Wilson
Judgment Date20 February 2013
Neutral Citation[2013] UKSC 8
Date20 February 2013
CourtSupreme Court
In the matter of L and B (Children)

[2013] UKSC 8

before

Lord Neuberger, President

Lady Hale

Lord Kerr

Lord Wilson

Lord Sumption

THE SUPREME COURT

Hilary Term

On appeal from: [2012] EWCA Civ 984

Appellant

Gwynneth Knowles QC Sarah Kilvington

(Instructed by Russell and Russell Solicitors)

Respondent

Anthony Hayden QC Karl Rowley

(Instructed by Bolton Council Legal Services)

Respondent

Charles Geekie QC Rachael Banks

(Instructed by CMA Law)

Respondent

Gillian Irving QC

(Instructed by Barkers Solicitors)

Respondent

Frances Judd QC

Linda Sweeney

(Instructed by AFG Law)

Heard on 21 January 2013

Lady Hale (with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Sumption agree)

1

The issue in this case is whether and in what circumstances a judge who has announced her decision is entitled to change her mind. The issue arises in the context of fact-finding hearings in care proceedings in a family court, but it could obviously arise in any civil or family proceedings. So a subsidiary question is whether the principles are any different in that context.

2

One difference is that section 1(2) of the Children Act 1989 requires that any court hearing a case in which a question about the upbringing of a child arises is to have regard to the general principle that delay in determining it is likely to prejudice the welfare of the child. This court heard the appeal on 21 January 2013. The final hearing to determine the future of the child in question was fixed to take place the following week. Accordingly, we announced our decision to allow the appeal at the end of the hearing, with judgment to follow.

The facts
3

The proceedings concern a little girl whom I shall call Susan, who was born on 8 July 2010, and her elder half brother whom I shall call Terry, who was born on 30 January 2006. On 21 September 2010, Susan was taken to hospital by her mother and found to have suffered a number of fractures to her ribs, clavicle and long bones, as well as some bruising to her face and head. Care proceedings were brought in respect of both children three days later. Susan was placed in foster care, where she has remained ever since. Terry was initially removed from his home with his maternal grandparents, but was returned to them after a few days, and has remained with them ever since.

4

On 15 November 2010, Judge Penna directed that the case be listed for a fact finding hearing to determine the nature and extent of Susan's injuries, their causation whether accidental or non-accidental, and if non-accidental, the identity of the perpetrator or perpetrators. That hearing began on 31 May 2011. Unfortunately, it became necessary to adjourn the hearing on the second day, because of the mother's mental health. She suffers from a serious mental illness and was unable to cope with giving evidence in the ordinary way. The hearing was resumed on 26 September 2011, with the mother giving evidence via a video-link, but she was also unable to cope with this. On 29 September the judge concluded that the mother lacked the capacity to take part in the proceedings and invited the Official Solicitor to act as her litigation friend. This he agreed to do on 20 October 2011.

5

The fact finding hearing resumed on 22 November and concluded on 25 November 2011. The mother gave no more evidence but the father gave evidence over two days. Thus the father was cross-examined but the mother was not. The judge also heard oral evidence from various family members and from the paediatric sister at the time of Susan's admission to hospital, the health visitor, and the mother's community psychiatric nurse. She had written reports from the medical witnesses about the nature and causation of Susan's injuries. By that stage it was common ground that these were non-accidentally caused and that the only possible perpetrators were the mother and the father. The judge also had written psychiatric reports about the mother's mental condition. After the conclusion of the evidence, the parties made written submissions. The local authority, in a noticeably balanced account of the evidence, submitted that it was not possible to identify a sole perpetrator on the evidence. The mother argued that the father was sole perpetrator and the father argued that the mother was sole perpetrator. The children's guardian took a neutral stance.

6

The judge gave her first judgment orally on 15 December 2011. When it was partially transcribed much later (the recording started after the judge had begun to deliver judgment but we are told that nothing of substance has been missed), the judgment was headed 'Preliminary Outline Judgment approved by the Court'. The transcript consists of only 15 paragraphs. It does not deal at all with the specifics of the injuries to the child, their nature, or their timing. It concentrates on the stresses upon the family caused by financial problems, the mother's mental illness, and caring for a young baby who cried often and was not easy to feed. It concluded that the pressures upon the father, who took the lion's share of the responsibility for looking after Susan, became intolerable and he snapped. So the finding was that the father was the perpetrator, although the judge took care to stress that under ordinary circumstances he was a loving and competent parent and had a valuable role to play in his daughter's life. The judge also stated that if any party would be assisted by the provision of detail in relation to specific points, she would address them.

7

At that hearing and by email the following day, counsel for the father asked her to address a number of matters in an addendum to her judgment: the context in which both mother and father had given their evidence; the mother's opportunity to have perpetrated the injuries; the inconsistencies in the mother's account; the mother's lack of parenting skills and what she did when the baby cried and the father was not there. This accords with the guidance given in In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note), [2011] EWCA Civ 1205, [2012] 1 WLR 595. At para 16, Munby LJ stressed that:

"… it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process."

8

The order drawn up as a result of the judgment of 15 December recorded that the "Court provided a summary judgment in respect of the fact finding hearing where the father was seen to have caused the injuries to [the child]". It went on to order the next steps in the case, including an experts' meeting before a further directions hearing on 23 January 2012, with the final hearing provisionally booked for 20 February 2012. Unbeknown to anyone at the time, that order was not formally sealed by the Manchester County Court until 28 February 2012.

9

The local authority's care plan was for Susan to be placed with the maternal grandparents where her half brother Terry was already living. At the directions hearing on 23 January 2012, it was recorded that the court would use three days of the hearing beginning on 20 February to determine whether Susan should be placed in the grandparents' care. The judge ordered that a perfected judgment would be distributed by 9 February and deemed to have been handed down on the date of distribution. However, on 15 February, the judge delivered a bombshell in the shape of a written "perfected judgment". This expanded upon the earlier judgment in some respects: it gave an account of the injuries, concluded that they were non-accidental, that one of the parents must have been the perpetrator, that the same parent was likely to have inflicted all the injuries, that Susan had been injured during the course of the day before she was taken to hospital or the two or three days beforehand, and that she had been injured on (at least) one occasion before that. However, it reached a different conclusion from the conclusion reached in December:

"Given the uncertain nature of the evidence after the passage of so much time I am unable to find to the requisite standard which of the parents it was who succumbed to the stress to which the family was subject. It could have been either of them who injured [Susan] and that is my finding."

10

At the hearing on 20 February, counsel for the mother asked the judge to explain why she had changed her mind and not given the parties an opportunity to make further submissions before doing so. She delivered a short extempore judgment apologising to the parties, although she did "not view the development of this matter as a complete change of direction and the scenario which I posited when giving my view in December remains a possibility". She went on, "the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had been alone with the child and might have caused some injury".

11

The order made on 20 February recorded that "The mother through her counsel, supported by the other parties, sought clarification of the reasons behind the court's determination that it could not identify a sole perpetrator as between the mother and the father in its judgment of 15 February 2012, compared with the conclusion indicated in the preliminary judgment of 15 December 2011". It was ordered that the hearing listed for 23 February should be for case management, with a view to a further assessment of the father as a carer for Susan, rather than for considering the placement with the maternal grandparents.

12

The mother, the Official Solicitor still acting as her litigation...

To continue reading

Request your trial
209 cases
  • Lethe Estate Ltd and Great River Rafting and Plantation Tour Ltd v Jamaica Public Services Company Ltd
    • Jamaica
    • Supreme Court (Jamaica)
    • 23 Febrero 2018
    ...Counsel stated that this approach was adopted by Baroness Hale in Re L and another (children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8. 304 The learned Judge stated as follows:- “17. The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66) and 1875 (38 & 39 Vic......
  • Earl Ferguson v General Legal Council
    • Jamaica
    • Court of Appeal (Jamaica)
    • 29 Junio 2023
    ...power to vary or set aside its decision at any time before it ‘perfects judgment’. That principle was affirmed in Re L and B (Children) [2013] UKSC 8, a case referenced in Wesley Dickins v The Parole Board for England and Wales & the Secretary of State for Justice and about which Stacey J o......
  • ZZ, AZ, FA, ARA, KA and ASA (Children)
    • United Kingdom
    • Family Court
    • 12 Junio 2014
    ...of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21, In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, [2013] 1 WLR 634, paras 33–35. 20 In Re M and MC (Care: Issues of Fact. Drawing of Orders) [20021 EWCA Civ 499, [2003] 1 FLR 461, there had ......
  • Andrew Gregg v North West Anglia NHS Foundation Trust
    • United Kingdom
    • Queen's Bench Division
    • 27 Febrero 2018
    ...evidence, Mr Hyman drew my attention to the cases of Vringo Infrastructure v ZTE (UK) Ltd [2015] EWHC 214; In re L and another (children) [2013] UKSC 8 and Absolute Lofts South West London Ltd v Artisan Home Improvements & another [2015] EWHC 2632 which he said showed, broadly speaking the ......
  • Request a trial to view additional results
3 firm's commentaries
1 books & journal articles
  • Litigation
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 Abril 2020
    ...[4] (CA); Baxall Securities Ltd v Sheard Walshaw Partnership [2002] BLR 100 at 110 [58], per David Steel J (CA); In re L and B (children) [2013] UKSC 8; Amey LG Ltd v Cumbria County Council [2016] EWHC 2856 (TCC) at [1.10], per HHJ Stephen Davies (referring to the “Barrell jurisdiction”, af......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT