A LOCAL AUTHORITY v Mother & Ors

An earlier family fact-finding judgment may be reopened where the application has genuine legal significance and there are solid grounds for believing that the findings require revisiting. Applications based on fresh substantive evidence ordinarily require evidence capable of supporting a different result. Fair-hearing applications require a different approach: the court must consider whether a serious procedural irregularity rendered the decision unjust, and it need not be satisfied that a rehearing will produce a different outcome. Material non-compliance with participation directions for vulnerable parties, especially where later credible evidence shows that more assistance was required and credibility was important, may justify reopening. The court should manage the application according to its substance and may direct a rehearing of the relevant findings.

The local authority had obtained care and placement orders after HHJ Backhouse found that child C had suffered inflicted subdural and retinal haemorrhages, but could not identify which parent was responsible. The parents later sought to reopen those findings in proceedings concerning their younger child, D, and in connection with adoption applications for the older children.

The applications relied both on alleged deficiencies in the medical evidence and on procedural unfairness arising from inadequate participation directions and non-compliance with Ground Rules for vulnerable parents. The court considered Stage 1 of the three-stage approach to reopening findings identified in Re E.

1. Stage 1. The application satisfied the requirement that reopening have legal significance. The findings affected the threshold and welfare decisions concerning D and could affect the care, placement and adoption orders concerning the older children.
2. For substantive challenges to medical findings, the court applied the approach in Ladd v Marshall. The later material had to be unavailable earlier, credible and likely to have an important influence on the decision. Counsel’s criticisms, and evidence from another case, did not amount to solid grounds for believing that the medical conclusion would change. The evidence of Dr Anslow in R v Henderson was not central to the Court of Appeal’s decision, and Sutton v Gray and Others (No 1) did not establish that the mechanism advanced in this case was a sufficient explanation.
3. Fair-hearing applications required consideration of whether there had been a serious procedural irregularity and, if so, whether the decision was unjust. It was unnecessary to demonstrate that a rehearing would produce a different result where the process itself had materially failed to secure fair participation.
4. The transcripts showed that the Ground Rules concerning breaks were not consistently followed during expert evidence and the parents’ evidence. Later credible assessments supported the conclusion that, had they been available, different Ground Rules and intermediary assistance would probably have been provided. The parents’ vulnerability was material because the original judge’s assessment of their credibility affected the perpetrator findings.
5. The combined effect of the procedural failures and fresh evidence meant that the 2018 hearing had not been fair. The parents therefore succeeded at Stage 1. The finding concerning the cause of C’s injury, and consequently the related perpetrator issues, required relitigation. The precise scope of the rehearing and any further medical evidence were left for directions. Fresh experts were not instructed at this stage.

First-instance decision. The judgment concerns Stage 1 of an application to reopen an earlier fact-finding judgment. A further directions hearing was required to determine Stages 2 and 3 and the arrangements for the rehearing.