In the matter of L and B (Children)

Until an order is perfected by sealing, a judge in civil or family proceedings retains jurisdiction to reconsider an announced decision. The discretion is governed by the overriding objective of dealing with the case justly. It is not confined to exceptional circumstances.

Finality and any detrimental reliance are relevant, but a carefully considered change of mind may suffice. The discretion must be exercised judicially. Fairness may require further submissions, particularly after a substantial interval.

In care proceedings, a judge should not be required to determine a child’s future welfare on a factual basis which the judge believes to be false. The paramount-welfare principle in the Children Act 1989 reinforces that consideration.

During a fact-finding hearing in care proceedings, a judge initially identified the father as the person who had injured a child. Before the resulting order had been sealed, the judge issued a fuller judgment finding that either parent could have caused the injuries. She had reconsidered the evidence while responding to requests for fuller reasons.

The Court of Appeal, by a majority, allowed the mother’s appeal and directed that the first findings should stand: [2012] EWCA Civ 984. Rimer LJ dissented. The father appealed with the support of the local authority, the children’s guardian and the maternal grandparents.

The central questions were whether the judge retained jurisdiction to change her decision before the order was perfected and, if so, whether she had exercised that jurisdiction properly.

1. Appeal allowed unanimously. Lady Hale delivered the judgment, with which Lord Neuberger, Lord Kerr, Lord Wilson and Lord Sumption agreed. The judge had jurisdiction to change her decision and was entitled to exercise it. The welfare hearing was therefore to proceed on the findings in the judgment of 15 February 2012.

2. A judge retains jurisdiction to reconsider an announced decision until the resulting order is drawn up and perfected. Under rule 40.2(2)(b) of the Civil Procedure Rules 1998, perfection occurs when the court seals the order. After perfection, the judge cannot change the order unless an express power permits variation; the ordinary route of challenge is an appeal.

3. The proper exercise of the pre-perfection jurisdiction is governed by the overriding objective of dealing with the case justly. The Court disapproved the exceptional-circumstances limitation associated with In re Barrell Enterprises [1973] 1 WLR 19. It approved Clarke LJ’s approach in Stewart v Engel [2000] EWCA Civ 362: all the circumstances must be considered, and examples of proper reconsideration are not exhaustive. A carefully considered change of mind can itself be sufficient.

4. Finality and detrimental reliance remain relevant. Here, no party had irretrievably changed position, the child’s placement had not been decided and the child remained in her existing placement. A judge should not be required to make the final welfare decision on a factual basis which the judge believes to be false. Although section 1(1) of the Children Act 1989 does not govern every procedural decision, the child’s welfare is paramount when the final upbringing decision is made.

5. The discretion must be exercised judicially and not capriciously. Fairness may require notice and an opportunity for further submissions, especially where a long interval has elapsed. Further submissions were unnecessary here because the judge had received extensive evidence and full written submissions; repetition would not have assisted her.

6. In obiter observations, the Court confirmed that findings made at a split fact-finding hearing in care proceedings may be revisited when fresh evidence or later developments warrant it. Such findings are ordinarily recorded in an interlocutory order, and the case-management powers in the civil and family rules permit relevant orders to be varied or revoked. The Court left open whether a sealed fact-finding order could be varied solely because of a judicial change of mind.

7. A fully reasoned judgment is the best safeguard against unnecessary reconsideration. It should confront material evidence, the parties’ opportunities to cause the injuries and relevant credibility issues. Delivering an inadequately reasoned judgment quickly may create greater delay later.

1. United Kingdom Supreme Court: The father’s appeal was allowed unanimously. The Court set aside the Court of Appeal’s disposition and directed that the welfare hearing proceed upon the findings contained in the judgment of 15 February 2012.

2. Court of Appeal: By a majority, the court allowed the mother’s appeal, quashed the judgment of 15 February 2012 and ordered that the findings announced on 15 December 2011 should stand: [2012] EWCA Civ 984 . Rimer LJ dissented.

3. Manchester County Court: The judge initially identified the father as the perpetrator on 15 December 2011. Before the resulting order was sealed, she issued a fuller judgment on 15 February 2012 finding that either parent could have caused the injuries.