S (Children) (New Evidence), Re

In children proceedings, an appellate court may admit new evidence where the interests of justice require welfare decisions to be based on sound factual findings. The Ladd v Marshall approach remains relevant, but family appeals require proper flexibility rather than laxity. Evidence that materially undermines the fundamental basis of a fact-finding judgment can justify admission and a rehearing. An appeal from a fact-finding judgment remains available where the findings are relevant to continuing welfare decisions. Such an appeal is not academic merely because the appellant no longer seeks the original relief.

The mother appealed against findings made by His Honour Judge Middleton-Roy, sitting as a Deputy High Court Judge, concerning the circumstances in which the parties’ children travelled from Afghanistan to England and came to live with their father. The judge dismissed the mother’s application for a summary return order but left welfare issues, including contact, to be determined.

After the judgment, the Home Office disclosed approximately 700 pages of immigration applications and supporting documents. The mother sought permission to rely on that material, arguing that it materially contradicted the father’s evidence and undermined the judge’s credibility findings. The issues were whether the new evidence should be admitted and whether the matter should be reheard.

1. Disposition. The appeal was allowed. The new evidence was admitted and the matter was remitted for rehearing before a Family Division judge allocated by the President of the Family Division. The rehearing judge was not bound by earlier case-management decisions concerning the evidential scope of the hearing.
2. Appealability and continuing welfare proceedings. An appeal lies from a fact-finding judgment where the findings remain relevant to future welfare decisions. The appeal was not academic merely because the mother no longer sought the children’s summary return, since continuing welfare proceedings depended on sustainable factual findings. This was supported by In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 and the principle stated in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821.
3. New evidence. Under rule 52.21(2)(b) of the Civil Procedure Rules 1998, the admission of further evidence is guided by the Ladd v Marshall analysis. In children cases the approach requires proper flexibility, not laxity. The welfare of children and the need for sound factual findings are relevant considerations, as explained in Re E (Children: Reopening Findings of Fact) [2020] 2 All ER 539.
4. The immigration material contained significant inconsistencies concerning the parents’ marriage, divorce, the father’s dependent children and the arrangements for the children’s entry to England. It materially undermined the finding that the father’s evidence was consistent on the core issues and vitiated the fundamental basis of the judgment. The original grounds therefore did not need to be determined.
5. The proposed adjournment would merely have delayed the appeal and was unjustified. Nor was it necessary to require a separate application below to set aside the judgment, because the appeal had already commenced and the Court of Appeal was well placed to determine the challenge.

1. Court of Appeal (Civil Division) — On 24 October 2024, the court allowed the appeal, admitted the Home Office material and remitted the matter for rehearing: [2024] EWCA Civ 1265.
2. High Court of Justice, Family Division — His Honour Judge Middleton-Roy, sitting as a Deputy High Court Judge, dismissed the mother’s application for a summary return order on 2 May 2024 but left further welfare issues for determination.