Re W (Children)

In children proceedings, a court may revisit an earlier finding where genuinely new material was unavailable at the original hearing and the applicable procedural power permits a rehearing. The focus is whether the new material could affect the finding, not whether the original judge erred on the evidence then available. Issue estoppel has little, if any, role in children proceedings, but finality and delay remain important. A judge may reach the same conclusion after considering fresh evidence fairly. An appellate court will not interfere where that conclusion was open to the judge.

Mr W sought permission to appeal against an order of His Honour Judge Marston refusing to set aside findings made in care proceedings after Mr W had been acquitted in related criminal proceedings. He relied principally on the transcript of the alleged victim’s criminal-trial evidence, which had not been available at the fact-finding hearing, and on alleged non-disclosure.

The judge treated the application as one under Order 37 rule 1 of the County Court Rules. He found that the care proceedings had been fair, rejected the non-disclosure allegations, considered the new transcript, and concluded that it would not have altered his findings. The central issue was whether that approach was legally correct and whether the conclusion was open to him.

1. Application refused. The Court of Appeal declined permission to appeal and did not interfere with the order refusing a rehearing.
2. Order 37 rule 1 permits a rehearing where no error of the court at the original hearing is alleged. The relevant inquiry is whether material subsequently available could have led to a different result. An acquittal in criminal proceedings, by itself, does not require civil findings to be set aside because the standards of proof differ.
3. The judge was entitled to examine the transcript of the criminal evidence and decide whether it materially affected the earlier findings. He identified the discrepancies relied on, regarded them as minor, and concluded that the main substance of the evidence remained intact. He was entitled to place that material in the context of all the evidence at the care hearing.
4. The judge had addressed the issue fully and fairly. Even if his precise procedural approach could be questioned, his conclusion was available on the evidence and was not susceptible to appellate interference.
5. Issue estoppel has little, if any, role in children proceedings. The court must balance finality and the prejudice caused by delay against the need to avoid reliance on findings that may be erroneous. The judge remains able to consider the ultimate outcome on all material properly placed before him, including genuinely fresh evidence.
6. The later Supreme Court decision concerning oral evidence from an alleged child victim, reported at [2010] UKSC 12, represented a development in the law but did not affect the outcome.

• Court of Appeal (Civil Division): In the earlier appeal, reported under [2009] EWCA Civ 644, the court did not overturn the factual findings because of the criminal acquittal and did not require the child to give evidence or adjourn the care proceedings.
• Portsmouth County Court: His Honour Judge Marston’s judgment dated 15 September 2009, formally handed down on 9 November 2009, refused the application to set aside the original findings and order a rehearing.
• Court of Appeal (Civil Division): Permission to appeal was refused. The court held that the judge’s conclusion was open to him.