M & M C (Children), Re

In care proceedings, an earlier determination of responsibility for injuries may be reconsidered at the disposal hearing when material evidence subsequently emerges. The court should retain the earlier hearing as its foundation and make only the adjustments justified after the new evidence has been rigorously tested.

The normal rules of issue estoppel operate flexibly where children’s welfare is at stake. A judge’s previous adverse findings do not, without unfairness or an appearance of unfairness, require the proceedings to continue before another judge. Judicial continuity remains highly desirable.

A local authority sought care orders concerning two children. At a preliminary fact-finding hearing, Judge Hamilton found that serious injuries had probably been inflicted by the mother’s partner, although he could not exclude the mother’s responsibility. The mother later admitted responsibility for injuries to one child.

The judge refused an application for a retrial of the preliminary issues. The mother sought permission to appeal, contending that the admission had to be considered to avoid an erroneous assessment of future risk. She also sought the replacement of Judge Hamilton.

The central questions were whether the finding concerning responsibility could be revisited at the disposal hearing and whether fairness required a different judge.

1. Permission granted and appeal allowed to a limited extent. Thorpe LJ held that Judge Hamilton had rightly refused to discard the preliminary fact-finding process and conduct a complete retrial merely because the mother had changed her account. The opposite course of treating the original finding as incapable of reconsideration was also inappropriate.

2. The disposal hearing should proceed on the foundation of the earlier fact-finding hearing. The court could then make such adjustments as the subsequent evidence required. The mother’s admission had to be tested through examination and cross-examination, together with the partner’s response and any revised or extended expert opinion. The judge could ultimately reject the admission, particularly if it conflicted with the medical evidence.

3. Neuberger J agreed that the finding as to who inflicted the injuries could be reconsidered. The normal rules of issue estoppel are more flexible in care proceedings, as recognised in Re B (Children Act Proceedings) (Issue Estoppel) 1 FLR 285. Reconsideration would not nullify the earlier hearing because findings that the injuries were intentional would remain. It would also cause no identified prejudice or extension of the listed disposal hearing. No order embodying the finding had been drawn, so the matter was not technically res judicata.

4. The Court of Appeal was not reversing a refusal to adopt the same course. Judge Hamilton had been asked to conduct an immediate rehearing, whereas the Court permitted limited reconsideration at the later disposal hearing. His earlier reasons also left open the possibility that further evidence could justify a different conclusion.

5. The request for another judge was refused. Both judges held that Judge Hamilton’s previous findings and expressed scepticism created neither unfairness nor an appearance of unfairness. A changed account does not ordinarily require reassignment. Continuity of judicial management is highly desirable and should yield only where the interests of justice require it.

6. Thorpe LJ also emphasised that orders following the determination of specified issues should record the answers to those issues and any later ruling on an application to reopen them.

1. Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed to the limited extent that the finding identifying the perpetrator could be reconsidered at the disposal hearing. The request that the proceedings continue before another judge was refused: [2002] EWCA Civ 499.

2. Manchester County Court: Judge Hamilton found at the preliminary hearing that the mother’s partner had probably inflicted the injuries. He later refused the parties’ application for a retrial following the mother’s admission. No citation is stated.