In the matter of R-E (Children)

Applications to reopen care proceedings must pass the first stage of the three-stage approach in In re Z (Children) (Care Proceedings: Review of Findings) Practice Note [2015] 1 WLR 95. There must be some real reason, supported by solid grounds, to believe that earlier findings require revisiting; hope and speculation are insufficient.

Procedural fairness does not prevent a judge deciding that issue at a directions hearing, including whether further expert evidence is needed, where the issue has been identified and the court has sufficient information. New medical evidence must be assessed against the whole record and must cast meaningful doubt on the findings or potential outcome.

Care proceedings concerning two children concluded in 2015 with a supervision order and in 2016 with care and placement orders. The mother, supported by the father, applied for rehearings based on evidence suggesting that she had Ehlers-Danlos syndrome and that the children might have inherited it. She also sought permission to instruct further medical experts.

At a hearing listed for further directions, Her Honour Judge Davies dismissed the rehearing applications and the mother’s expert applications on 18 January 2018. The parents appealed, arguing that the judge should have dealt only with directions and lacked sufficient information to determine the first stage of the rehearing applications.

Appeals dismissed. Lord Justice Moylan gave the judgment, with the Senior President of Tribunals agreeing.

1. Applicable approach. The court was bound to apply the three-stage approach in In re Z (Children) (Care Proceedings: Review of Findings) Practice Note [2015] 1 WLR 95. At the first stage, the question was whether the new material provided some real reason, supported by solid grounds, to believe that the earlier findings required revisiting.
2. Procedural fairness. A hearing described as one for further directions could include a determination of whether a rehearing application had sufficient substance to proceed and whether further expert evidence was necessary. The issue had been identified in the parties’ position statements, and the judge had sufficient information to decide it fairly. No party had sought an adjournment or submitted that further information was essential. Procedural fairness did not require the judge to give directions only.
3. New evidence. The court referred to In re B [1997] Fam 117 at p. 129: a rehearing application must be based on new evidence or information casting doubt on the accuracy of the original findings. Cases in which material not yet in existence must first be obtained are likely to be rare.
4. Application to the evidence. The proposed Ehlers-Danlos diagnosis rested on clinical findings. There was no history of unexplained or excessive bruising, and the children’s later medical records showed that they were thriving. The proposed condition would not explain the metaphyseal fracture. The original decisions also rested on multiple findings and considerations, and the new evidence would not materially have changed the outcome or undermined the finding that the mother required substantial long-term therapy.
5. The judge was therefore entitled to dismiss the applications at the January hearing. Her decision was procedurally fair and clearly justified.

• Court of Appeal (Civil Division). In [2018] EWCA Civ 953, the parents’ appeals were dismissed.
• Family Court at Peterborough. On 18 January 2018, Her Honour Judge Davies dismissed the mother’s applications for further medical experts and both parents’ applications to rehear the care proceedings.