Birmingham City Council v Mrs H

In public law children proceedings, an earlier finding may be reviewed through three stages: permission to reconsider it, directions regulating the evidence and scope of the inquiry, and the eventual review hearing. At the first two stages the court has a judicial discretion, exercised to achieve justice rather than injustice. The court should preserve finality while allowing significant new evidence or changes in the evidential picture to be examined. The trial judge must decide the final test after the review evidence is available.

Expert evidence assists the court but does not determine factual issues, including the significance of a child’s history and the credibility of carers. Interim contact must be arranged by reference to the child’s welfare, including the seriousness of the consequences if a perceived risk materialises.

The local authority sought a care order for S, relying on earlier findings in proceedings concerning S’s sibling that Mrs H had inflicted the fatal harm suffered by another child. The parents challenged reliance on those findings in the light of further medical investigations, possible natural causes and criticisms of expert evidence.

The November 2005 hearing could not determine the long-term welfare issues. Charles J therefore gave directions for further expert work, considered the legal issues likely to arise at the eventual review and determined interim contact. The central questions included how earlier findings should be revisited, what effect subsidiary credibility findings might have, and whether the court’s jurisdiction under section 31 of the Children Act 1989 could arise from established facts and risk even if the earlier overall finding did not stand.

1. Review of earlier findings. The court identified three stages: whether reconsideration should be permitted; the extent of the investigation and evidence; and the eventual hearing at which the earlier finding would be reassessed. The first two stages involve a judicial discretion directed to achieving justice rather than injustice. Finality in litigation is an important consideration, and a high threshold should ordinarily be required before an earlier finding is displaced or no longer treated as binding.
2. The court declined to formulate the final test before the further investigations had been completed. The trial judge would have to assess the changed evidential picture, including medical evidence, credibility findings and the extent to which the earlier reasoning remained sound. A finding that the earlier overall conclusion could no longer be relied on would not necessarily establish a natural cause; the result might remain unknown.
3. Threshold and risk. The court explained the distinction between the jurisdictional threshold and the welfare or disposal stage under the Children Act 1989. It invited consideration of whether subsidiary findings, established to the civil standard, could support a real possibility of significant future harm even if the earlier overall finding of inflicted harm did not stand. Those questions were left open and were not determined.
4. Experts and directions. The court is the fact-finder. Experts must be properly instructed, must address the issues within their expertise and must not supplant the court’s assessment of history and credibility. Professor Y was to continue as the jointly instructed expert with an overview role. Dr Z could undertake a defined second-opinion role only if Professor Y remained willing to perform his own role.
5. Interim contact. The child’s welfare was paramount. Given the existing finding, the unknown reason for the earlier harm and the gravity of the consequences if risk materialised, constant supervision was required. Exceptionally, that meant two supervisors. Regular Saturday contact was permitted, while overnight contact and face-to-face sibling contact were not ordered at this stage.
6. Publication. The judgment and specified earlier judgments were directed to be published in anonymised form, with an injunction preserving the anonymity of the family and other persons concerned.