A & Anor v Northamptonshire County Counci & Ors

Permission to reopen earlier findings of fact in family proceedings requires more than speculation, hope, or a real prospect of success. The applicant must show solid grounds, or some real reason to believe that the earlier findings require revisiting. The court must balance finality in litigation against the public interest in accurately identifying those responsible for serious non-accidental injuries to children. Fresh evidence must be considered with the earlier material and in the context of the totality of the evidence. Medical knowledge and expertise may have advanced since the original hearing, but the public interest in accurate identification alone does not satisfy the threshold. A report may be admitted despite procedural shortcomings where the court is satisfied of the expert’s experience and probity.

In 2012, following a fact-finding hearing, the court found that an infant had sustained four non-accidental fractures inflicted by one or both parents. The children were subsequently placed under Special Guardianship Orders with their maternal grandparents.

The mother, supported by the father, sought permission to reopen the findings. They relied principally on later evidence concerning vitamin D insufficiency, possible osteopenia, and possible underlying bone or genetic conditions. The application was opposed by the local authority and the Children’s Guardian. The central issues were whether the new material provided solid grounds or some real reason to revisit the earlier findings, and whether a further expert report should be admitted.

1. Permission refused. The application to reopen the 2012 findings was dismissed. The parents had not established solid grounds or some real reason to believe that the earlier findings required revisiting.
2. The court adopted the three-stage approach identified in Birmingham City Council v HH & S [2005] EWHC 2885 Fam and endorsed in Re ZZ & Others [2014] EWFC 9: first, whether reconsideration should be permitted; secondly, the extent of investigation and evidence; and thirdly, the rehearing applying the relevant legal test to the circumstances then found.
3. At the first stage, the test is not whether the applicant has a real prospect of success. There must instead be some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are insufficient. The court must balance finality in litigation against the public interest in accurately identifying those responsible for serious non-accidental injuries, including the child’s interest in knowing the truth where it can be ascertained. The existence of that public interest alone does not satisfy the threshold. The court should also consider whether medical knowledge or expertise has materially advanced since the original hearing.
4. The court admitted Dr Watt’s report and answers to supplementary questions. Although there had been delay and incomplete disclosure of communications, the expert’s considerable experience and probity justified admission. The court considered the approach to expert evidence in Re M (children) [2018] EWCA Civ 607, together with section 13 of the Children and Families Act 2014, Part 25 of the Family Procedure Rules and Practice Direction 25B.
5. On the evidence, E had not been shown to have suffered vitamin D deficiency, clinically significant osteopenia, hypermobile Ehlers-Danlos syndrome, osteogenesis imperfecta, or another condition predisposing her to fractures. The later reports did not materially differ from the earlier expert evidence and did not provide an alternative explanation for the fractures.

First-instance decision. The judgment does not state an appellate history.