S & Ors (Children), Re

An appellate court should not permit a limited retrial of a factual issue merely because further witnesses might give relevant evidence. Where those witnesses could have been called at first instance, the trial judge carefully evaluated the evidence, observed and cross-examined the witnesses, and no error in the reasoning is shown, reopening the finding is unwarranted. The court may also consider whether reopening a finding would disrupt or add nothing useful to imminent child-disposal proceedings.

Black J gave a detailed judgment on 28 November 2001 concerning the care and future disposal of children from three families. Two applicants sought permission to challenge a specific finding that they had sexually abused two children on Christmas Day 2000.

Permission had been refused by the trial judge and the Court of Appeal initially refused the applications on paper. On oral renewal, the applicants narrowed their challenge and sought to introduce evidence from two family members who could have been called at the original hearing. The central issue was whether the finding should be reopened and the matter returned to the trial judge before the disposal hearing.

1. Application refused. The Court of Appeal unanimously refused permission and declined to order a limited retrial of the Christmas Day finding. The order included a community funding assessment of the applicants’ costs.
2. Lord Justice Thorpe held that Black J’s finding resulted from her evaluation of the evidence as a whole, reasonable inferences from the established facts, consideration of the parents’ case, and rejection of the adults’ reliability. The judge had explained why the relevant family events were likely to have occurred on Christmas Day and why contrary material did not undermine that conclusion. No error in her analysis was identified.
3. The appellate court attached substantial weight to the trial judge’s advantage in seeing the witnesses give evidence and be cross-examined. Lord Justice Buxton expressly agreed, emphasising the evidence supporting the finding independently of the disputed Children Act statement and the judge’s justified scepticism about the adults’ accounts and the children’s reported explanations.
4. The proposed fresh evidence did not justify reopening the finding. The witnesses were available at the original hearing, and permitting their evidence would have muddied the forthcoming disposal hearing without offering a proper basis for undermining the trial judge’s conclusions. Mr Justice Jackson agreed with the reasons and commended the care of Black J’s judgment.

• Court of Appeal (Civil Division) — Application for permission to appeal and oral renewal refused on 29 April 2002.
• High Court of Justice, Family Division — Black J delivered a judgment on 28 November 2001 making the challenged factual finding; permission to appeal was refused.