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Family court has jurisdiction to review its findings of fact, says Court of Appeal

The family court has the statutory power to review its own decisions and challenges to findings of fact on the basis of further evidence do not have to be by way of appeal only, the Court of Appeal has held.

In E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 Lord Justice Peter Jackson said: “Welfare decisions made by the family court are based on an assessment of the relevant facts. In care proceedings, facts establishing the threshold are a precondition to making any order at all.

“Depending on their gravity, findings of fact may be highly relevant to, or even determinative of, the welfare decision, not only in the proceedings in which they were made, but also in other proceedings about the same child or proceedings about different children. An incorrect finding one way or another can have lasting consequences.”

The Court of Appeal judge said that, consequently, the court “goes to great lengths to ensure that its findings of fact are reliable, and the normal process of appeal should ensure that unjustified findings are not allowed to stand.

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“At the same time, the public interest in justice must be balanced against the public interest in the finality of litigation and there are proper limits on the extent to which the court will allow its findings of fact to be revisited.”

Lord Justice Peter Jackson said the appeal in E called for consideration of the options open to someone wishing to challenge findings of fact in family proceedings on the basis of further evidence that was not available at the trial. “Do they have to appeal? Or can they apply to the trial court? And if they can do both, which is the better course?”

The Court of Appeal judge said he would “respectfully differ” from the provisional view expressed in Re G and hold that the family court has the statutory power to review its own decisions and that challenges to findings of fact on the basis of further evidence do not have to be by way of appeal only.

“I would further suggest that, other things being equal, an application to the trial court is likely to be a more suitable course than an appeal. The trial court is likely to be in a better position than this court to assess the true significance of the further evidence, its advantage being all the greater if the findings are relatively recent, and if the matter can be considered by the judge who made them, as should always be the case if possible,” Peter Jackson LJ said.

“Another reason for preferring an application to an appeal is that it is likely to be dealt with more quickly and at less expense. There will, however, be circumstances in which a return to the trial court will not be appropriate. That will certainly be the case where the applicant is alleging an error by the trial judge, regardless of the further evidence. Judges cannot hear appeals from themselves. There may be other situations, which it would not be possible or helpful to try to list, in which an appeal would be more appropriate than an application, but otherwise, an application should be the first port of call.”

The Court of Appeal judge said that a convenient mechanism for freestanding applications was provided by Part 18.1 of the Family Procedure Rules 2010.

Having established that the family court has jurisdiction to review its findings of fact, the next question concerned the proper approach to the task, the judge said.

“As with the approach of an appeal court to the admission of further evidence, the family court will give particular weight to the importance of getting it right for the sake of the child. As was said in Re L and B at [41]:

"In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court's paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct."

Lord Justice Peter Jackson said the test to be applied to applications for reopening had been established in a series of cases: Birmingham City Council v H (No. 1) [2005] EWHC 2885 (Fam) (Charles J); Birmingham City Council v H (No. 2) [2006] EWHC 3062 (Fam) (McFarlane J); and Re ZZ [2014] EWFC 9 (Sir James Munby P).

These decisions established that there are three stages, he added. “Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.”

In relation to the first stage, these decisions affirmed the approach set out in Re B. “That approach is now well understood and there is no reason to change it. A court faced with an application to reopen a previous finding of fact should approach matters in this way:

(1) It should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other.

(2) It should weigh up all relevant matters. These will include: the need to put scarce resources to good use; the effect of delay on the child; the importance of establishing the truth; the nature and significance of the findings themselves; and the quality and relevance of the further evidence.

(3) "Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial." There must be solid grounds for believing that the earlier findings require revisiting.”

Lord Justice Peter Jackson also drew attention to the observations of Cobb J in Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326 (Fam) about the care that must be taken when assessing the significance of further medical opinions at the first stage and as an example of the need to control the identification of issues and gathering of evidence at the second stage.

“Pausing at this point to compare the hurdles facing an applicant to the trial court and an applicant to this court, it can be seen that the processes are by their nature different. The gateway under CPR 52.21(2) and the Ladd v Marshall analysis concern the admissibility of evidence, while the first stage of an application for a review requires a consideration of the overall merits of the application. It cannot be ruled out that the different procedures might throw up different results in similar cases, but on the whole I think that this is unlikely. In both contexts, the balancing of the public interests is carried out with a strong inclination towards establishing the truth in cases where there is good reason for a reassessment, and as a result the outcomes will tend to converge.”

The Court of Appeal judge said it remained to consider the position of the Family Division of the High Court, which does not benefit from the provisions of s.31F. That lacuna was filled by the Court of Appeal directing a rehearing under the inherent jurisdiction in a case where a child had been adopted: Re X [2016] EWHC 1342.

“I have already mentioned the decision of MacDonald J in N v J, invoking FPR r.4.1(6). It would clearly be preferable if procedure in the High Court was equivalent to that in the family court, indeed it is perverse that it is not. I note that in Gohil the Supreme Court recommended that a rule be made to confirm the jurisdiction of the High Court to set aside a financial order made in that court. The result was FPR 9.9A, introduced in October 2016…

“The course of this appeal demonstrates the value of an equivalent rule encompassing applications to set aside or vary orders and findings of fact in children cases. This is a matter that the Family Procedure Rules Committee may wish to consider.”

Lord Justice Peter Jackson said the appeal should be dismissed and the decision should be referred to the trial judge as to whether and to what extent the findings of fact against the appellant should be reopened.

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