L-S (Child)

A trial judge is ordinarily best placed to decide whether fresh material justifies reopening factual findings because the judge heard the original evidence. An appellate court should give considerable weight to that assessment and intervene only if the refusal to reopen is shown to be wrong. A parent may genuinely, though irrationally, believe abuse occurred and nevertheless manipulate a child into making false allegations; those findings are not necessarily inconsistent. A decision to withhold further therapeutic records is a case-management decision. It may stand where confidentiality was an intended feature of therapy and the issues can be fairly explored from material already disclosed.

The mother sought permission to appeal against three decisions of HHJ Wilding in care proceedings concerning B: refusal to disclose further records of B’s therapeutic contact with an adolescent resource centre; refusal to reopen January 2015 findings that no sexual abuse had occurred and that the mother had manipulated, persuaded and encouraged B to make allegations; and orders providing for B to live with his father with limited supervised contact with the mother.

The applications to reopen the findings and for further disclosure were refused in 2016. The mother relied on fresh documentary material, argued that her genuine belief in abuse was inconsistent with manipulation, and contended that the withholding of therapeutic records prevented a fair hearing. The central issues were whether the findings should be reopened and whether wider disclosure was required.

The Court of Appeal refused permission to appeal. The proposed grounds had no real prospect of success.

1. Reopening factual findings. The applicable framework was not in dispute. HHJ Wilding had referred to section 31 (F)(6) of the Matrimonial and Family Proceedings Act 1984 and Re ZZ and Others [2014] EWFC 9. The issue was whether he had applied that law incorrectly to the material before him.
2. The appellate court gave considerable weight to the trial judge’s assessment of whether fresh material could have affected his original findings. He had heard the extensive evidence and was in a substantially better position to assess the significance of later material. The new material, including records, transcripts, emails and information concerning the police evidence, either could have been explored at the original hearing, added detail without materially undermining the existing evidence, or did not affect the judge’s assessment of credibility and motivation.
3. There was no irreconcilable inconsistency between a genuine but irrational belief that abuse had occurred and a finding that the mother had manipulated and persuaded B into making false allegations. The finding did not necessarily mean that she knowingly fabricated the allegations. The welfare decisions made after the fact-finding judgment had taken the genuineness of her belief into account and were not shown to have proceeded on a wrong basis.
4. ARC disclosure. The refusal to order wider disclosure was a case-management decision and was not readily vulnerable on appeal. The therapeutic relationship had been established with an expectation of confidentiality. The judge was entitled to conclude that the remaining issues could be fairly explored through the material already available and cross-examination of the social worker and guardian, without invading confidentiality or delaying the decision about B’s welfare.
5. The orders under challenge therefore remained in force and no appeal followed.

• Court of Appeal (Civil Division) — On 12 October 2017, refused permission to appeal against HHJ Wilding’s 2016 decisions concerning reopening the fact-finding findings, disclosure of ARC material and B’s placement. [2017] EWCA Civ 1551
• Court of Appeal (Civil Division) — In June 2015, Ryder LJ refused permission to appeal against HHJ Wilding’s January 2015 fact-finding judgment.
• Watford Family Court — HHJ Wilding refused the applications to reopen the findings and for further ARC disclosure in 2016, and ordered that B live with his father with supervised contact with the mother.