J (Children: Reopening Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Nicola Davies,Lady Justice Elisabeth Laing |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWCA Civ 465 |
| Docket Number | Case No: CA-2023-000234 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 465
Lord Justice Peter Jackson
Lady Justice Nicola Davies
and
Lady Justice Elisabeth Laing
Case No: CA-2023-000234
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT TAUNTON
Her Honour Judge Skellorn KC
TA22C50037
Royal Courts of Justice
Strand, London, WC2A 2LL
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 1 st 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
Approved Judgment
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.
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
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...
To continue reading
Request your trial