K-L (Children), Re

In care proceedings, the Court of Appeal may entertain an appeal from preliminary factual findings even where they have not been embodied in a formal order. A judge may revise a decision before the order is drawn up and sealed, but the power must be exercised judicially and not capriciously. A change of mind requires a satisfactory, reasoned explanation. Where successive judgments are inconsistent, contain material errors, and reproduce submissions without independent analysis, the findings cannot safely stand. The appropriate course is to set them aside and remit the case for rehearing.

The local authority brought Children Act 1989 care proceedings concerning four boys. After a fact-finding hearing, the judge gave an oral judgment finding sexual and physical abuse, then circulated two written judgments reversing the sexual-abuse finding while maintaining other findings. No clear formal order embodied the final judgment. An order later purported to reflect the oral judgment, although it had not been approved by the judge.

The mother appealed. The Court of Appeal considered its jurisdiction, which decision was effective, and whether the later findings could stand in light of the judge’s change of mind, factual errors and treatment of the parties’ submissions.

1. Jurisdiction and effective decision. The traditional rule that appeals lie only from orders could not be applied rigidly to preliminary fact-finding decisions in Children Act 1989 proceedings. Following In re B [2000] 1 WLR 790, the absence of a formal order did not necessarily deprive the Court of Appeal of jurisdiction. The court treated judgment 3 as the effective outcome of the fact-finding hearing because the subsequent procedural record proceeded on that basis.
2. Power to change a decision. Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8; [2013] 1 WLR 634 established that the power to reverse a preliminary decision before an order was drawn up and sealed was not confined to exceptional circumstances. The overriding objective was to deal with the case justly, but the power had to be exercised judicially and not capriciously.
3. Application. The judge’s oral judgment clearly recorded findings of sexual abuse. The later explanation that those findings were merely an off-the-cuff indication or a misstatement did not withstand examination. The later judgments also contained factual errors and reproduced a substantial part of the guardian’s submissions without independent analysis. A proper judgment must examine competing submissions and explain why one argument is preferred. The judge’s change of mind was therefore not made judicially, and no confidence could be placed in the resulting findings.
4. Disposition. The three judgments and the April order were set aside. The case was remitted to the Liverpool Family Court for rehearing on all issues. The judgments were to be referred to the President of the Family Division for consideration of whether further steps were required.

1. Court of Appeal (Civil Division): [2015] EWCA Civ 992. Judgment 3 was treated as the effective decision, all three judgments and the April order were set aside, and the case was remitted for rehearing.
2. Civil and Family Court sitting at Liverpool: A fact-finding hearing before Her Honour Judge Lyon produced an oral judgment followed by two inconsistent written judgments and a problematic order.