X (A Child), Re (Rev 1)

Where substantial new evidence casts real doubt on findings previously made in care proceedings, the court may reopen the fact-finding process under the inherent jurisdiction. Mere speculation or hope is insufficient; there must be solid grounds for revisiting the findings. The review follows a three-stage approach. The court first considers whether new evidence justifies review. It then determines the proper ambit of the review in its forensic context. Where the circumstances require it, the review must be a full rehearing of the original allegations. The interests of the child in knowing the truth, the interests of justice, and the wider public interest in identifying miscarriages of justice may all support reopening the hearing. A successful rehearing does not by itself determine whether an adoption order should be set aside.

The case followed care and placement proceedings in which findings of serious injury had been made against the birth parents. The findings, care orders, placement orders and subsequent adoption order were not appealed. After the Crown abandoned a later criminal prosecution when the expert evidence had expanded significantly, the birth parents sought permission to appeal out of time and a new trial.

The Court of Appeal adjourned the permission application and indicated that the inherent jurisdiction might provide the appropriate mechanism for reconsidering the facts. The local authority accordingly applied for a rehearing. The issue before the High Court was whether the original fact-finding hearing should be reopened and, if so, whether the rehearing should be limited or full.

1. The application under the inherent jurisdiction was granted in substance. The original fact-finding hearing was to be reopened and a full rehearing of the allegations was directed.

2. The court applied the three-stage approach identified in In re Z (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9, [2015] 1 WLR 95. At the first stage, there must be new evidence giving a real reason to doubt the accuracy of the original findings. Mere speculation or hope is insufficient. That threshold was met because of the substantially expanded expert evidence available after the criminal trial.

3. At the second stage, the court must determine the ambit of the review in the forensic context and circumstances of the particular case. The court should not impose a prescriptive approach. Here, the circumstances required a full rehearing of the original allegations; nothing less would suffice.

4. The decision was reinforced by the child’s interest in the ascertainment of the truth, the birth parents’ interest in clearing their names, and the public interest in exposing and preventing miscarriages of justice. Those considerations had to be balanced against the serious burden imposed on the adoptive parents, who did not oppose the rehearing.

5. The court expressed no view on any future application to set aside the adoption order. Even if the birth parents succeeded at the rehearing, that would not necessarily result in revocation of the adoption order. The rehearing was fixed to commence in October 2016, with further directions required, including consideration of the third stage of the Re Z approach and reporting arrangements.

The judgment records that the Court of Appeal adjourned the birth parents’ application for permission to appeal out of time and directed consideration of an application under the inherent jurisdiction. The local authority then issued the present application in the High Court. The High Court directed a full rehearing of the original fact-finding allegations.