J (Children: Reopening Findings of Fact)

An application to reopen a finding of fact in children proceedings requires a three-stage approach. At the permission stage, the court must balance finality in litigation against the need for sound welfare decisions. It must assess all relevant circumstances and decide whether there are solid grounds for thinking that a rehearing might produce a different finding.

Further information need not relate exclusively to the original allegation. The recognised considerations are not exhaustive. The approach in RL v Nottinghamshire County Council [2022] EWFC 13, which imposed a narrower res judicata-based test, should not be followed.

Care proceedings concerning four children followed an allegation by D that F2 had sexually abused her. The local authority relied alternatively on that allegation, on an earlier allegation by A that F2 had assaulted her, and on allegations that M had caused emotional harm by fostering false allegations.

In 2021, the Family Court had made no finding that F2 assaulted A. A had been discharged as a party and did not give evidence. In December 2022, Her Honour Judge Skellorn KC granted the local authority permission to reopen that outcome as part of a wider threshold hearing. F2 appealed, contending that there was no qualifying new information concerning A’s allegation and that the judge had relied on irrelevant matters.

The central issue was whether the judge had correctly applied the settled jurisdiction to reopen findings of fact in children proceedings.

1. Appeal dismissed. The judge correctly identified and applied the settled three-stage approach in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. At the first stage, the court must balance finality against the need for reliable welfare-based decisions, consider all relevant circumstances, and decide whether there are solid grounds for thinking that a rehearing may produce a different outcome.

2. The Family Court was entitled to consider the extent of A’s participation in the earlier hearing, the circumstances in which she ceased to be a party, the absence of an appeal, and the nature of her evidence at the criminal trial. These matters helped the court understand the reliability and forensic setting of the earlier non-finding. Their weight was for the judge and her assessment was well within the permissible range.

3. The judge was also entitled to regard A’s and D’s allegations, and the alternative case concerning M’s conduct, as interlinked. It was theoretically possible to determine D’s allegation alone, but that could impede a proper assessment of the alternative threshold case. The allegations were capable of being mutually probative, subject to proper analysis at the fact-finding hearing.

4. The further information capable of supporting reopening need not relate exclusively to the original finding. The recognised features of the first-stage inquiry are guidance, not an exhaustive or restrictive code. The judge’s composite assessment disclosed solid grounds for revisiting the non-finding and for obtaining a reliable factual matrix for the children’s welfare decisions.

5. As significant guidance, the court stated that RL v Nottinghamshire County Council [2022] EWFC 13 should not be followed. Its narrower test, derived from civil res judicata authorities, improperly reformulated binding appellate guidance. Child welfare proceedings require an approach responsive to their statutory welfare context; a test developed for a different civil context, including Phosphate Sewage Company Ltd v Molleson (1879) 4 App Cas 801, cannot simply be transplanted.

• Court of Appeal (Civil Division) — dismissed F2’s appeal in J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465.
• Family Court at Taunton — Her Honour Judge Skellorn KC granted the local authority’s application to reopen the 2021 non-finding concerning A, as part of a wider threshold fact-finding exercise.
• Family Court — in 2021, His Honour Judge Edward Richards made no finding that F2 had sexually assaulted A.