AD & AM (Fact-Finding Hearing) (Application for Re-Hearing)

Permission to revisit an earlier fact-finding determination requires more than speculation, hope or the mere existence of new evidence. The applicant must show a real reason to believe that the earlier findings require revisiting. Newly obtained expert evidence may satisfy that threshold even where it consists of changed medical opinion rather than new facts. The court must assess its apparent reliability, methodology, consistency, factual basis and fit with established findings. The test is less demanding than the test for permission to appeal and does not require a real prospect of success. If the threshold is met, the scope of any review should be determined proportionately and, where appropriate, after an experts’ meeting. The legal burden remains unchanged, while the evidential burden lies on the party seeking to displace the earlier findings.

Care proceedings were brought after a ten-month-old child suffered life-threatening head, brain and spinal injuries. At an earlier fact-finding hearing, the court found that the injuries were non-accidental and had been inflicted by the mother. The children were later rehabilitated to the parents under protective arrangements.

The mother applied for a re-hearing after substantial new medical evidence became available, including pathological examination of a previously unavailable skull fragment and opinions concerning bone fragility, osteopenia, vitamin D, the force required, timing and possible lucid intervals. The local authority and Children’s Guardian opposed re-opening the findings. The central issue was whether the new material provided sufficient grounds to proceed beyond the first stage of the review process.

1. Application granted in part. The court directed a limited reconsideration of the earlier findings. It did not determine that the original findings were probably wrong, nor did it decide the ultimate causation or perpetrator issues.
2. The applicable approach was the three-stage process identified in Birmingham City Council v H and others [2005] EWHC 2885 (Fam) and endorsed in Re ZZ & Others [2014] EWFC 9. At stage 1, the applicant must demonstrate a real reason to believe that the earlier findings require revisiting. Mere speculation and hope are insufficient, but the threshold should not be set higher than that.
3. The stage 1 test is less exacting than permission to appeal. The court need not be satisfied that the applicant has a real prospect of success or that there is another compelling reason for a hearing. The relevant question is whether the new material creates a sufficient doubt about the earlier findings.
4. New expert evidence can justify review even where it does not disclose new facts. The court must nevertheless examine its apparent quality and reliability. Relevant considerations include whether the expert is suitable, whether the opinion is researched and clinically grounded, whether reports are internally consistent, whether they use the correct factual basis, whether the experts saw the earlier material, and how the new evidence fits with established findings.
5. The court must consider the competing public interests in finality and in accurately identifying those responsible for serious injuries to children. Medical and expert evidence must be evaluated as part of the totality, rather than in isolated compartments, applying the approach in Re T [2004] EWCA Civ 558.
6. The newly discovered skull sample, evidence of woven bone and possible osteopenia, further opinion from an expert previously relied upon, and new views concerning the force, timing and number of incidents provided sufficiently solid grounds for review. The evidence was materially inconsistent and its ultimate effect remained uncertain, but it raised a legitimate possibility that the earlier findings might require modification.
7. Stage 2 should be expeditious, fair and proportionate. An urgent meeting of the experts from both rounds of litigation was directed, with access to the earlier reports, the earlier fact-finding judgment and this judgment. The scope of any further hearing, investigation or evidence was left to be determined after the experts’ informed views.

First-instance application within care proceedings. The court directed a limited review of its earlier fact-finding determination and deferred decisions about the scope of any further hearing.