L-B (Children)

In care proceedings, a judge who has delivered a fact-finding judgment cannot ordinarily reverse findings merely because further reflection has produced a change of mind. Findings about past events provide the foundation for the welfare decision that follows. Revision may be justified by a compelling or exceptional circumstance, such as genuinely new and potentially decisive evidence or a material change in circumstances. The fact that the order has not been sealed, or that a final care order remains to be made, does not give a general licence to rewrite the factual history.

The mother appealed, through the Official Solicitor, against orders made by Her Honour Judge Penna following a fragmented fact-finding hearing concerning serious injuries to a child. On 15 December 2011 the judge orally found that the father had caused the injuries and excluded the mother as a perpetrator. She later issued a fuller judgment reversing that conclusion, stating that neither parent could be identified as the sole perpetrator, and clarified that position on 20 February 2012.

The appeal concerned whether the judge had jurisdiction, and whether it was proper, to recall the first judgment and substitute the later findings before the care proceedings had concluded.

1. By a majority, the appeal was allowed. Thorpe LJ and Sir Stephen Sedley held that Judge Penna was bound to adhere to the conclusion announced on 15 December 2011. A request for further detail permitted supplementation of reasons, following English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, but did not permit reversal of the conclusion.
2. Thorpe LJ accepted that a judge may generally reconsider and revise a draft judgment before the resulting order is perfected. That principle did not apply to a clear fact-finding judgment which had been delivered, acted upon and followed by consequential directions. The fact-finding hearing establishes the past events on which professionals and the court assess future risks. The later welfare hearing has a fundamentally different purpose. Interim developments may justify revisiting findings, but such cases will be rare and the developments must be substantial, if not fundamental.
3. Thorpe LJ rejected the suggestion that the absence of a sealed order, or the existence of a later final care order, generally authorised revision of findings about past facts. Finality is particularly important in child-protection litigation because changing the factual foundation can damage the child, family and care-planning process.
4. Sedley LJ considered delivery of judgment, rather than sealing the consequential order, to be the event constituting the decision. A change of mind alone was not an objective or sufficient reason to reopen it. The interests of justice may exceptionally require departure from finality, for example where potentially decisive new evidence emerges, but no such circumstance existed here.
5. Rimer LJ dissented. He considered that the judge retained jurisdiction to revise the findings because the relevant order was the final order settling the child’s future, and that the child’s welfare justified correcting a fundamental error.

• Court of Appeal (Civil Division): appeal from the Manchester Civil Justice Centre, where Her Honour Judge Penna had made the relevant fact-finding and subsequent orders. The Court of Appeal, by a majority, allowed the appeal.