M, Re (Rev 4)

A later judgment from another United Kingdom jurisdiction has no legal status in England and Wales where no applicable recognition or enforcement regime applies. It may nevertheless be relevant evidence when deciding whether earlier findings should be reopened. Reopening requires solid grounds for challenge, not speculation, hope, or a comparison of the perceived quality of competing judgments. The court must apply a staged process: permission to review, determination of the scope of the review, and rehearing of the permitted issues. In children’s cases, the court must balance finality, delay, the risk of relying on erroneous findings, and justice. A freeing order is not merely a technical status. Its welfare implications require consideration of whether the child should instead be subject to a care order and its associated statutory safeguards.

The mother applied to discharge a care order concerning C2, alternatively for contact, and to revoke a freeing order concerning C1. The applications depended substantially on reopening findings of fact made by HHJ Dowse in 2007 concerning alleged sexual abuse. A Scottish sheriff, in later proceedings concerning the family, reached a different conclusion on the allegations. The court had to determine the legal status and evidential weight of the Scottish judgment, whether the English findings should be reopened, and whether C1’s freeing order should be revoked and replaced by a care order.

1. The Scottish judgment had no legal status in England and Wales. The Family Law Act 1986 did not apply, and Re W-B [2012] EWCA Civ 592 established that Brussels II Revised did not govern jurisdictional issues between territorial jurisdictions within the United Kingdom. The Scottish judgment could nevertheless have evidential weight.

2. The court applied the three-stage approach endorsed in Re ZZ [2014] EWFC 9: first, whether review should be permitted; secondly, its extent; and thirdly, the rehearing and decision on the extent to which the earlier findings stand. The first stage requires a real reason to believe that the earlier findings require revisiting and solid grounds for challenge.

3. A comparison of the forensic quality of the English and Scottish judgments was misconceived. Neither judgment had been appealed and both were sustainable. The conflicting outcome, the perceived quality of the Scottish reasoning, the effect on family life, and general fairness did not constitute solid grounds. The later interview and expert material did not materially undermine the earlier findings. No rehearing was permitted.

4. Expert evidence concerning the quality or reliability of child interviews must remain within the expert’s proper role. The judge alone determines reliability. Under FPR 2010 Rule 25.4, expert evidence may be adduced only where necessary to assist the court. Such evidence will therefore be rare, although exceptional complex cases may justify it.

5. The mother’s application to revoke C1’s freeing order was granted. C1’s wishes and feelings, particularly her consistent wish for no parental involvement, were effectively determinative of contact and information. However, the child’s legal status was itself a welfare issue. The freeing order was revoked and replaced by a care order to the local authority, with information redacted to protect C1’s whereabouts. Contact was refused under section 34(4) of the Children Act 1989.

6. An order under section 91(14) of the Children Act 1989 was made for the remainder of C1’s minority. Any application for permission was initially to be considered on paper and without service on the respondent, while preserving the possibility of an oral application following refusal.