I (A Child), Re

When deciding whether to reopen a fact-finding hearing, the court must exercise a discretionary balance. It may look ahead and assess the realistic benefit of a rehearing, including whether fresh evidence could reasonably exclude the applicant. That assessment does not require the court to assume the role of the retrial judge or make final findings on the new evidence. The court may weigh the likely outcome against delay, expense and disruption to proceedings concerning a child’s future. Fresh evidence that does not justify a rehearing may nevertheless require the existing fact-finding conclusion to be qualified and preserved in the child’s life-story information. The record should make the significance of that evidence clear, so that the child receives the fullest accurate account.

Following a fact-finding hearing concerning a child’s severe non-accidental injuries, HHJ Ludlow concluded that the mother alone could have caused the cranial injury. Care and placement orders followed. Later expert evidence widened the possible timing of that injury and brought another potential perpetrator into the pool, although it did not exculpate the mother. After the birth of a second child, the mother applied to reopen the earlier fact-finding decision. HHJ Harris refused the application on 16 October 2009, balancing the limited possible benefit against the need to proceed with the second child’s final care hearing. Care and placement orders were subsequently made and were not challenged. The central issue was whether HHJ Harris had erred in evaluating the prospects and consequences of a rehearing.

The Court of Appeal granted permission to appeal but unanimously dismissed the consequential appeal.

1. Assessment on a rehearing application. A judge considering whether to reopen a fact-finding hearing may look ahead and assess the reasonable prospect that fresh evidence would produce a materially different result, including exclusion of the applicant. This is part of the discretionary evaluation and does not involve taking over the role of the judge at any future rehearing. The approach in Re K [2005] 1 FLR 285 did not prevent that assessment.
2. Balancing exercise. The court may weigh the likely high-point benefit of a rehearing against its practical consequences, including aborting or delaying a fixed hearing concerning the child’s future. On the evidence, the best realistic outcome was only that the pool of possible perpetrators would be widened to include Mr T. The fresh evidence did not exculpate the mother. HHJ Harris was therefore entitled to refuse the application.
3. Accuracy of the child’s later account. The fact that fresh evidence does not justify a rehearing does not make it irrelevant. Those responsible for the child’s future should ensure that the child receives the fullest information about the circumstances of the injuries and care, including the later expert evidence.
4. Practical guidance. Where fresh evidence is significant enough to qualify a fact-finding conclusion but insufficient to justify a retrial, it should be clearly flagged in the record. The court suggested that it may be appended to the judgment refusing the rehearing, so that the information is not lost over time.

1. Court of Appeal (Civil Division): On 17 February 2010, permission to appeal was granted and the consequential appeal was dismissed: [2010] EWCA Civ 319.
2. Chelmsford County Court: HHJ Harris refused the application to reopen the earlier fact-finding decision on 16 October 2009. The later care and placement orders concerning the second child were made on 22 October 2009 and were not challenged.