CTD (A Child: Rehearing)

When findings of fact in family proceedings are reopened, the court must determine the issues afresh on the whole of the evidence. The earlier findings carry no presumptive weight, and the court must not privilege earlier evidence over later evidence.

The legal burden remains on the party seeking the relevant findings, to the civil standard. Concepts such as an evidential burden, making the running, a starting point or the supposed strength of the original evidence apply, if at all, when deciding whether and how to reopen findings. They have no place at the rehearing itself.

An intervener appealed against findings made by MacDonald J at a rehearing of care proceedings concerning injuries to a child. The original judge had found that the intervener caused all the injuries. After later evidence revealed serious abuse by the parents, MacDonald J confirmed that the intervener caused the final injury but replaced the findings concerning four earlier injuries with findings that either the father or the intervener had caused them.

The central issue was whether the judge had treated the proceedings as a review rather than a rehearing, given excessive weight to the original findings, or reversed the burden of proof.

1. Appeal dismissed. A family court considering whether to reopen findings proceeds in three stages: it determines whether solid grounds exist for believing that the findings require reconsideration; decides how the rehearing should be conducted; and then rehears and determines the issues.

2. At the first stage, the court balances finality, delay and the child’s welfare against the need to avoid reliance on erroneous findings. The applicant must show more than speculation or hope. The challenged finding must also have actual or potential legal significance.

3. At the second stage, the court must define the scope of the rehearing. This prevents an unstructured repetition of evidence while ensuring that every issue materially affected by the new information is reconsidered.

4. At the third stage, the court determines the issues afresh from the whole of the evidence. It gives no presumptive weight to the earlier findings and does not privilege earlier over later evidence, oral over written evidence, or contentious over uncontentious evidence. The legal burden remains on the party seeking the findings, which must prove them to the civil standard. A rehearing is therefore distinct from an appeal, where findings stand unless shown to be wrong.

5. The concepts of an original finding as a starting point or strong evidence, an applicant making the running, and an evidential burden should be laid aside at the rehearing stage. They add nothing and may cause misunderstanding. To the extent that earlier decisions suggested otherwise, their formulations were simplified.

6. MacDonald J’s statement that he was not retrying the issue in its entirety was incorrect. Nevertheless, his judgment showed that he had considered all the evidence afresh, had neither privileged the original findings nor reversed the burden of proof, and had reached conclusions properly open to him. His factual findings therefore disclosed no substantive error.

• Court of Appeal (Civil Division): Dismissed the intervener’s appeal and upheld the findings made at the rehearing: [2020] EWCA Civ 1316.
• High Court (Family Division): MacDonald J reheard the findings, confirmed that the intervener caused the final injury, and substituted a pool finding concerning four earlier injuries. No neutral citation was stated.
• Family Court: Her Honour Judge Hughes originally found that the intervener had caused all the child’s injuries. No neutral citation was stated.