Private Law: Reopening/appealing findings of fact, with close consideration of Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447

The issue of reopening findings of fact or appealing them has been a cause of significant debate for some time, with several cases addressing this in the last few years. The bulk of these cases have focussed factually on care matters; however, the tests and considerations are relevant to private law proceedings due to the shared focus on the welfare of the child(ren) and subsequently, the welfare checklist.

Re E (Children: reopening findings of fact) [2019] EWCA CIV 1447

Re E is a seminal case in this matter which focusses on challenging findings of fact in family proceedings on the basis of further evidence that was not available at the original trial [Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2]]. The facts of the case are: a mother sought to appeal the outcome of a finding of fact hearing. She denied the allegations and provided a series of explanations. She admitted earlier explanations were untrue and serious findings were made against her, with the children being removed. A criminal investigation occurred in parallel and a report in these proceedings detailed that some of the explanations may be plausible. The mother sought to appeal and include this report as it undermined the findings made. Upon hearing the appeal, the court determined that the report was to be admitted and that the matter would be best resolved before the trial judge.

Within Re E, the court considered the criteria established in Ladd v Marshall[1954] 1 WLR 1489:

a)     The new evidence must be so significant it could not have been obtained with reasonable diligence at the time of the original trial;

b)     The evidence would have significantly influenced the outcome of the case if it had been available;

c)     The evidence is considered to be credible and reliable but does not need to be incontrovertible.

The court determined that these criteria had been met. The debate arising from Webster v Norfolk County Council [2009] EWCA Civ 59, which proposed that cases involving children can less strictly apply the criteria, was dismissed. Peter Jackson LJ additionally detailed that the importance of welfare decisions for children required a basis in sound factual findings, and thus, this consideration would be “inevitably relevant” to the court [Re E, [24]].

Finally, the court considered the procedure by which findings of fact may be challenged on the basis of further evidence. The circumstances considered were:

a)      On an appeal on the basis of further evidence, usually an appeal out of time.

b)      On an application within continuing proceedings – for example, between a fact-finding hearing and a welfare hearing.

c)      In proceedings concerning the previous order – for example, an application to discharge a care order or an application for contact.

d)      In proceedings about another child.

e)      By a free-standing application brought after the end of the proceedings [Re E, [15]].

Peter Jackson LJ was firm that decisions must be case-specific and consider the competing public interests and need for consistency. Weight was given to the judgment of Wall LJ, sitting with Neuberger J, in Re K(Non-accidental injuries: Perpetrator: New Evidence) [2005] 1 FLR 285:

a)      There is public interest in identifying those who cause serious non-accidental injuries to children where possible, with any process that encourages or facilitates this to be welcomed in principle.

b)      Children have the right to know the truth about who injured them and why, if this truth can be ascertained [Re K, [57 – 58]].

Additional focus was given to Re W (Care Proceedings) [2010] 1 FLR1176 at 1183, which highlighted that “when deciding whether findings made in other proceedings should be reopened, the court will "above all" be influenced by the question of whether there is any reason to think that a rehearing of the issue will result in a different finding” [Re W,[29]].

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S.31F(6) Matrimonial and Family Proceedings Act 1984

Peter Jackson LJ in Re E concluded that under s.31F(6), the court has statutory power to review its findings of fact in all the above circumstances. In addition, he determined it would generally be more appropriate for the trial court to consider the significance of further evidence rather than have it considered as an appeal. It was recommended that appropriate applications for reopening findings of fact could be made under Part 18 of the Family Procedure Rules2010.

Summary of the law following Re E

1.     Findings of fact can bere opened by the family court and heard by the trial judge or appeal court dependent on the circumstances. It is generally more appropriate for the matter to be heard by the trial judge, as they are best placed to make determinations on the significance of any additional evidence, and this should be the first port of call.

2.     A party cannot simply appeal against or reopen a finding because they disagree with the outcome. The court must consider whether it is satisfied that there is likely to be a significant legal or practical difference on the ground for the children.

3.     There needs to be serious and specific consideration to the welfare of the child(ren), with the family court being required to “get it right”.

4.     The family court has the statutory power to revisit findings of fact under s.31F(6) Matrimonial and Family Proceedings Act 1984, and this power continues to apply following the conclusion of proceedings. It does not extend to the High Court.

5.     The family court is not limited in time when it comes to correcting a flawed finding of fact, as this may have long-standing consequences for the child(ren) involved.

Re J (Children: Reopening findings of fact) [2023] EWCA CIV 465

Re J was a care matter in which the Local Authority’s application for a finding of fact outcome to be reopened was granted. The father appealed this, but his application was dismissed. The facts of the case are as follows: there were four children, the mother, and two fathers involved in proceedings (F1 and F2),with the two eldest children being F1’s children, and two youngest being F2’s. F2was accused of sexual assault by his stepdaughter in 2019 and was acquitted by the Crown Court in 2020 following evidence from the stepdaughter and F2. In family court proceedings in 2021, no findings were made against F2, with the step daughter playing no role in that hearing. In 2022, F2 was accused of sexual assault by his daughter, and care proceedings were started. Threshold considered the allegation of sexual assault in 2019 also.

The application was granted by HHJ Skellorn KC, who accepted that the issue relating to the daughter was the same as that relating to the stepdaughter previously. It was deemed that the allegations were integral to threshold and that clarity could not be reached without returning to the previous allegations, thus, reopening findings. F2’s legal team appealed the decision of the court to reopen the finding of fact outcome on five grounds, with the fifth being most relevant. It was asserted per Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13 “new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before”. In brief, the new information needed to reopen a finding of fact outcome would need to relate specifically to the allegation, and it was argued it did not in this case. The appeal was dismissed, with criticism laid at the judgment of Re RL, with it being raised it did not sit alongside the judgment of Re E. ‍

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Three-Stage Process

When giving judgment, Peter Jackson LJ confirmed that the law in relation to reopening findings of fact in children matters is found in ReE.  He detailed the test to be applied as a three-stage process [Re J, [6]]:

1.      The consideration of the court as to whether it will permit any reconsideration of earlier findings;

2.      If it is willing to do so, the extent of the investigations and evidence that is to be considered;

3.     Hearing the review itself.

During the first stage, the court must consider:

a)      The context for the decision, namely, the balancing of important considerations of public policy including the favouring of finality in litigation, and the vital nature of “soundly-based welfare decisions”.

b)      All relevant matters, including good use of scarce resources, the effect of any delay on the child(ren), the importance of establishing the truth, the nature and significance of the findings, and the quality/relevance/reliability of further evidence.

c)      If there is any reason to think that rehearing the issue will result in any different finding from that in the earlier trial [Re J, [7]].

Outcome from Re J

The process for reopening findings of fact is clearly laid out within Re J and establishes that whilst there is a high threshold for such an application, they can indeed be reopened or appealed where the evidence is such that it would have a practical or legal impact upon the children.

Conclusions

Findings of fact can be both reopened and appealed, depending on the circumstances. This is because under s.31F(6) of the Matrimonial and Family Proceedings Act 1984, the family court has statutory power to do so. It is deemed preferable and the first port of call for an application to be made under Part 18 Family Procedure Rules 2010 to the trial judge unless it is being argued that the judge erred. The matter coming before the trial judge will ensure that it is dealt with more expeditiously, with a judge who is best placed to assess the significance of any additional evidence. This would, in turn, benefit the child(ren) as it would reduce delay and comply with the overriding objectives of utilising court time efficiently and minimising expense.

Test for reopening and/or appealing findings of fact

There are limits on the extent to which the court will allow findings of fact to be revisited, but due to their integral nature in determining long-term welfare decisions for children, incorrect findings should not stand. As such, there must be compelling evidence that meets the test established in Ladd v Marshall.

Other considerations

Whilst the case law centres on public law proceedings, it is directly relevant to private law proceedings due to the seriousness of the findings and the possibility that they could fundamentally change the arrangements for the subject children and of course, their families.