Pause, Stop, Rewind: Re-Opening Findings of Fact

Last month, the Court of Appeal handed down a decision in the case of Re CTD.[1] Lord Justice Peter Jackson consolidated and simplified the three-stage approach, which was originally endorsed by the Former President, Sir James Munby, in the case of Re Z (Children) (Care Proceedings: Review of Findings).[2]

The three-stage approach is designed to assist the Court to identify whether findings of fact should be re-visited, re-litigated and re-heard.

The Three-Stage Approach

The three stages of the Court’s decision-making process can be summarised as follows:

1. The Court 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, the Court decides how the rehearing is to be conducted.

1. The Court rehears the matter and determines the issues.

Stage One: Do previous findings require revisiting?

The common law doctrine of res judicata does not automatically apply to Children Act proceedings but Jackson LJ is quick to point out that “[any] decision to allow past findings to be relitigated must be a reasoned one”.[3]

The reasons often deployed by the Family Court are contained in Lady Hale’s leading judgment from Re B (Children Act Proceedings: Issue Estoppel).[4] In short, consideration must be given to whether reopening the case will serve the child’s best interests, whether the findings will have a material impact on the current proceedings and whether there are solid grounds for believing the rehearing will result in a different finding as “mere speculation and hope are not enough.”[5]

The considerations for the Court are not exhaustive. Jackson LJ observed in the latter case of Re E (Children: Reopening Findings of Fact) that the Court should also determine whether the challenged finding “is likely to make a significant legal or practical difference to the arrangements that are to be made for these or other children”.[6]

Stage Two: How is the rehearing to be conducted?

Depending on the facts of the case the Court may be invited to rehear the finding of fact exercise in its entirety. On the other hand, swathes of the evidence can be left undisturbed, as the Court embarks upon hearing only one aspect of the case. Take, for example, a case involving allegations of non-accidental injury where updating medical evidence requires the Court to revisit findings. In those circumstances it would be unlikely for the Court to take evidence from lay witnesses all over again. To illustrate this point Jackson LJ reminds practitioners that a rehearing should not be “a free-for-all”.[7]

If the first and second stages are conducted methodically, then the Court “[will] provide important protection against unmeritorious attempts to relitigate settled findings while allowing cases that genuinely require reconsideration to be identified and revisited in a proportionate way that uses the resources of the court sensibly and is fair to all the parties.”[8]

Stage Three: A rehearing, a review or an appeal?

A rehearing is precisely that. A clean slate where the issues to be determined are determined without “[giving] presumptive weight to earlier findings” and “where findings stand unless they are shown to be wrong.”[9]

The legal burden of proof remains with the applicant once the respondent has discharged the evidential burden at Stage One i.e. once they have demonstrated the rehearing should proceed.

“Accordingly, the simple position is that when it carries out a rehearing the court looks at all the evidence afresh and reaches its own conclusions, requiring the party seeking the relevant findings to prove them to the civil standard in the normal way.”[10]

The Facts of Re CTD

The original care proceedings concluded in August 2015 and concerned four children. At first instance, the Court found that a family friend, AO, had caused a number of serious injuries to the youngest child, C, who was then under 2 years old.

That finding was considered by Mr. Justice MacDonald at a rehearing in 2019. MacDonald J confirmed the finding that the last injury, a spiral fracture to the femur, had been caused by AO, but he amended the findings in relation to four earlier bony injuries and substituted a ‘pool finding’ that those injuries had either been caused by C’s father or by AO.

The Appeal

C’s father did not appeal the decision of MacDonald J – but AO did.

AO appealed on the basis that the assessment of the evidence at the rehearing was incorrectly approached as in later proceedings MacDonald J had found that C’s parents had sexually and physically abused C and her siblings at and before the time C sustained these injuries. That evidence had not been available to the first-instance judge at the time of the original finding of fact exercise.

MacDonald J described the approach he adopted at the rehearing in 2019 as follows:

“In considering whether to amend the findings made by Her Honour Judge Hughes, 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 considering the new information. The forensic focus therefore, must be on that new information evaluated in the context of the evidence previously before the court.”

Considering this self-direction does not reflect the need for the Court to look at all the evidence afresh, it should come as little surprise that AO was granted permission to appeal. The grounds of appeal were as follows:

1. The judge adopted a standard of review in relation to the earlier findings that gave excessive weight to the judgment of the trial judge and insufficient weight to the evidence which had caused him to reopen the findings made by her.
2. 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.
3. 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.

Comment

Jackson LJ was satisfied that MacDonald J’s self-direction did not reflect the need to reconsider all of the evidence but his findings were not set aside or substituted by the Court of Appeal in the absence of any “error of substance.”

As Jackson LJ puts it: “[MacDonald J] fully reheard the case and factored in all of the evidence when reaching his conclusions. He did not privilege the previous findings or discriminate against the later evidence. He did not reverse the burden of proof.”[11]

Jackson LJ concludes: “In the end, this was a case where the revelations about the parents' behaviour were so striking that the court rightly undertook a thorough rehearing of its earlier findings. Having done so, it might have reversed those findings, but its reasoned analysis of the evidence instead led it to amend them.”[12]

All care practitioners should keep the authority of Re CTD firmly in mind. The first thirteen paragraphs are a succinct statement of settled legal principle, and the outcome of the appeal demonstrates the wide discretion afforded to the tribunal at the rehearing. AO did not diminish their culpability as a result of the rehearing before MacDonald J or the appeal before the Jackson LJ. So, what is left? A rehearing of the rehearing? Watch this space.

[1] Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316.

[2] Re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9.

[3] Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316 at §3 (Jackson LJ).

[4] Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117 at §128 onwards (Hale LJ).

[5] Re ZZ & Ors (Children) [2014] EWFC 9 at §33 (Munby P).

[6] Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 at §34 (Jackson LJ).

[7] Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316 at §5 (Jackson LJ).

[8] Ibid, §6 (Jackson LJ).

[9] Ibid, §8 (Jackson LJ).

[10] Ibid, §13 (Jackson LJ).

[11] Ibid, §27 (Jackson LJ).

[12] Ibid, §30 (Jackson LJ).