E (Children: Reopening Findings of Fact)

The Family Court has power under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to reconsider material findings of fact, including after the proceedings have ended. An application to reopen requires solid grounds for believing that a rehearing may produce a different finding. The court must balance finality, resources and delay against the need for accurate welfare decisions and the significance and quality of the new evidence.

Where further evidence is relied upon, an application to the trial court will normally be the first and more suitable course. An appeal remains appropriate where judicial error is alleged or where the circumstances otherwise require it.

In care proceedings, the trial judge found that burns to the youngest child had been inflicted deliberately or caused by seriously culpable negligence. Care orders were made on 31 August 2018. The mother did not appeal at that time.

A later report from a forensic burns consultant, obtained during a parallel criminal investigation, identified a plausible accidental explanation. The mother sought permission to appeal out of time, to adduce the report, and for a retrial. The Court of Appeal admitted the report but considered that its significance should be assessed by the trial judge.

The central issue was whether, after a sealed final order, a challenge based on further evidence had to proceed by appeal or could be made directly to the Family Court.

1. Appeal dismissed. The court treated the mother as applying to the trial judge and directed a prompt directions hearing before HHJ Furness QC to decide whether, and to what extent, the findings should be reopened. The new report might materially affect the finding of deliberate burning, but its true significance was for the trial judge.

2. Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 empowers the Family Court to reconsider findings of fact that are integral to an order. The power extends to a freestanding application after the original proceedings have concluded. It is not confined to varying the formal order alone.

3. The court respectfully differed from the provisional obiter view in Re G [2014] EWCA Civ 1365. The observations in Re L and B (Children) [2013] UKSC 8 concerned a judge changing their mind after making a decision, rather than a statutory application to consider further evidence. They did not require an appeal to be the exclusive remedy.

4. An application to reopen proceeds in three stages: whether reconsideration should be permitted; what investigation and evidence should be allowed; and the review hearing itself. At the first stage, the court must balance finality and the avoidance of delay against sound welfare decisions, the importance of the finding, the need to establish the truth, and the quality and relevance of the new material. Above all, there must be solid grounds for believing that a rehearing may produce a different finding.

5. An appeal may be brought with fresh evidence, subject to the gateway in CPR 51.21 and the principles in Ladd v Marshall [1954] 1 WLR 1489. In children cases, flexibility serves the need for accurate welfare decisions, but it does not permit relitigation of sound findings. Here the criteria were satisfied and the report was admitted.

6. Absent an alleged error by the trial judge, an application to the trial court will normally be the first port of call. That court is usually better placed to assess recent findings and further evidence, and can do so more quickly and economically. An appeal remains appropriate where the complaint is judicial error or the circumstances make a return to the trial court unsuitable.

• Court of Appeal (Civil Division): dismissed the appeal as the less suitable procedure, while admitting the further report and directing the trial judge to consider reopening the findings: [2019] EWCA Civ 1447.
• Newport (Gwent) County Court and Family Court: HHJ Furness QC made care orders on 31 August 2018 after finding that the child's burns were deliberately inflicted or caused by seriously culpable negligence.