LG (Re-opening of Fact-finding), Re

An earlier family fact-finding decision may be reopened where later evidence gives solid grounds for believing that the findings may be flawed or incomplete. A later criminal conviction concerning a different incident may nevertheless be relevant, particularly where the earlier family court examined only selected allegations and no court has considered the alleged pattern of abuse comprehensively.

Consent to child arrangements does not remove the court’s continuing duty under Practice Direction 12J to consider domestic abuse and to ensure that arrangements protect the child and the other parent. Expert evidence based on an materially unbalanced account of the background may require replacement after a rehearing.

The mother appealed against a circuit judge’s refusal to reopen family-court findings that the father had not committed five alleged incidents of domestic abuse. She relied on the father’s subsequent conviction for criminal damage to her car, committed while she and the child were present, and on a restraining order made after the conviction.

The circuit judge also refused a further historic fact-finding hearing and allowed the existing psychologist to continue after directing a supplemental letter of instruction. The appeal concerned whether the later criminal proceedings supplied sufficient grounds to revisit the earlier findings and whether the expert’s lack of balance could be adequately corrected.

1. Appeal allowed. The decision refusing to reopen the findings and refusing to terminate the psychologist’s instruction was wrong. The matter was remitted for a fact-finding rehearing before a section 9 recorder.
2. An appeal in a family case is not a rehearing. It succeeds only where the decision below was wrong or unjust because of a serious procedural or other irregularity. The test for reopening a fact-finding decision involves three stages: whether reconsideration should be permitted, the scope of any investigation and evidence, and the rehearing itself. At the first stage there must be a real reason, or solid grounds, for believing that the earlier findings require revisiting. Mere speculation or hope is insufficient.
3. A court may properly confine a fact-finding hearing to allegations that are necessary and relevant. It must, however, ensure that significant issues are not overlooked. A pattern of harassment or domestic abuse may require a broader examination than a selection of specimen allegations.
4. The criminal conviction did not establish that the earlier family findings were necessarily flawed. It did, however, create a reasonable prospect that they might have been flawed and demonstrated that the earlier assessment was incomplete. The family court had considered only five allegations; another court had later accepted the mother’s evidence on a separate incident and imposed a restraining order. No court had comprehensively assessed all the allegations or their possible pattern.
5. The fact that the child arrangements order was made by consent did not discharge the court’s continuing responsibility under Practice Direction 12J to consider whether domestic abuse was raised and to scrutinise whether the arrangements protected the child and the parent with whom she lived.
6. The original instruction to the psychologist was materially unbalanced. The supplemental letter had not corrected the problem, as the psychologist’s report showed that she had not appreciated the significance of the conviction, the restraining order or the rejection of the father’s evidence. If psychological assessment remained necessary after the rehearing, a different psychologist was to be instructed.

• High Court (Family Division): allowed the appeal against the circuit judge’s refusal to reopen the findings and refusal to terminate the psychologist’s instruction. The matter was remitted for a fact-finding rehearing before a section 9 recorder.
• Family Court at Exeter: the circuit judge refused the mother’s application to reopen the findings, refused a further historic fact-finding hearing, and directed that the existing psychologist continue subject to a supplemental letter of instruction.