F (A Child), RE

In an exceptional family case, the Court of Appeal allowed an out-of-time appeal against findings made in earlier care proceedings after a later judge, on fresh medical evidence, concluded that those findings could not safely stand. A judge hearing later care proceedings may reopen the evidential issues relevant to the later case, but cannot himself set aside findings or discharge an earlier care order. The proper route is an appeal against the earlier order. The Court set aside the adverse findings and discharged the care order by consent, although the child’s father did not consent, with fresh care proceedings to follow.

The appellant mother challenged findings made by Kirkwood J in earlier care proceedings concerning the deaths of two children. Those findings had led to a care order concerning J. In later care proceedings concerning another child, M, Hedley J permitted the underlying matters to be reconsidered. On fresh medical evidence, he concluded that the causes of death were unascertained and unknown and that the earlier findings could not stand. His judgment is reported at [2007] EWHC 115 (Fam).

Because Hedley J had no power to set aside Kirkwood J’s findings, he recommended an out-of-time appeal. The central issue before the Court of Appeal was whether the earlier findings and resulting care order should be set aside.

1. Appeal allowed. The Court of Appeal accepted the unusual procedural route recommended by Hedley J and allowed the appeal out of time.
2. A judge in later care proceedings may reopen and reconsider the evidential issues arising from earlier findings where those issues are relevant to the later proceedings. That judge has no power himself to set aside the earlier findings or discharge the earlier care order. Any such challenge must be brought by appeal against the original decision.
3. Hedley J’s reconsideration, assisted by fresh medical evidence, required the conclusion that the causes of death of H and B were unascertained and unknown. The earlier adverse findings against the mother were therefore set aside.
4. The care order concerning J was discharged. This was done with the mother’s consent and the agreement of the guardian, although the father did not consent. The order was made on the understanding that fresh care proceedings would be commenced immediately, since the mother was unable to care for J or M.

• Court of Appeal (Civil Division): on 12 February 2008, the appeal was allowed. The earlier adverse findings were set aside and the care order concerning J was discharged.
• High Court, Family Division: Hedley J, in later care proceedings concerning M, reconsidered the earlier findings on fresh evidence and concluded that the causes of death were unknown. His judgment is cited as [2007] EWHC 115 (Fam).
• Birmingham District Registry, Family Division: Kirkwood J made the earlier findings in care proceedings and made a care order concerning J. The Court of Appeal set aside those findings and discharged that order.