Re U (A Child)

A final appeal, including a refusal of permission to appeal, may be reopened under CPR 52.17 only where reopening is necessary to avoid real injustice, the circumstances are exceptional, and no effective alternative remedy exists. The jurisdiction described in Taylor v Lawrence is tightly confined because finality in litigation is itself an important element of justice.

Fresh evidence ordinarily belongs to a first appeal. It will rarely justify reopening a concluded appeal unless it establishes a powerful probability that the earlier result was wrong and the resulting injustice is grave enough to outweigh finality. A mere possibility of error, even where the evidence satisfies the ordinary Ladd v Marshall criteria, is insufficient.

Care proceedings concerning U had resulted in adverse findings about the mother and in U’s removal from her care. The Court of Appeal had refused the mother permission to appeal. Reasons for that refusal were later given in a judgment reported at [2004] 3 WLR 753.

The mother made a renewed application to reopen that final refusal under CPR 52.17. She relied on fresh medical, genetic, statistical and ambulance evidence, principally to challenge findings that U’s episodes had resulted from intentional harm. The court admitted the late additional evidence but had to decide whether it disclosed the exceptional injustice required to reopen the appeal.

1. The renewed application was refused. The court held that CPR 52.17 reflects the residual jurisdiction described in Taylor v Lawrence [2002] EWCA Civ 90. Reopening is exceptional. It requires real injustice, exceptional circumstances and no alternative effective remedy.
2. The paradigm case is one in which the integrity of the earlier litigation process has been critically undermined, such as fraud, bias or a comparable procedural corruption. That is not an inflexible prerequisite, but a fresh-evidence application must show more than a possibility that the earlier result was erroneous. It must show a powerful probability of an actual wrong result and an injustice grave enough to outweigh finality, while taking account of the consequences for others and any responsibility of the applicant.
3. The ordinary fresh-evidence principles in Ladd v Marshall [1954] 1 WLR 1489 govern a first appeal. They do not ordinarily justify a second appeal by reopening a final appellate determination.
4. On the facts, the integrity of neither the trial nor the earlier appeal had been undermined. The suggested diagnosis of gastro-oesophageal reflux depended on a belated parental history inconsistent with contemporaneous records. The parents’ serious lack of credibility, including later deception of the local authority, materially weakened that account. The genetic, epidemiological and statistical material did not cast sufficient doubt on the trial medical evidence. The corrected ambulance-record finding could not undermine the wider credibility findings. No significant injustice had occurred.
5. In obiter guidance, the court stressed the independent statutory role of a child’s guardian in care proceedings. Under the Children Act 1989 and the Family Proceedings Rules 1991, a guardian must form and express an impartial view of the child’s interests. A party cannot seek the guardian’s removal merely because the guardian supports an adverse care plan; specific bias or impropriety would be required. The applicant was ordered to pay the respondent’s costs, with detailed assessment of the other parties’ costs except the local authority’s.

• Court of Appeal (Civil Division). On the present renewed application, the court refused to reopen its final refusal of permission to appeal under CPR 52.17.
• Court of Appeal (Civil Division). The court had refused permission to appeal on 4 March 2004 and gave reasons on 14 May 2004, reported at [2004] 3 WLR 753.
• High Court, Family Division. Bracewell J made the original findings in the care proceedings. Subsequently, Kirkwood J made a care order on a plan for U’s adoption.