Court of Appeal dismisses challenge to reopening of fact finding outcome

The Court of Appeal has dismissed an appeal against the reopening of a fact-finding outcome on all grounds and has said the approach in a first-instance Family Court decision, Re RL, “should not be followed”.

Dismissing the appeal in J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465, Lord Justice Peter Jackson said that despite the reopening application made by the local authority having raised “difficult issues”, the judge's response to this difficult decision “cannot be faulted”.

He added: “She identified the law correctly and analysed the application with scrupulous care.”

Outlining the background to the case, Lord Justice Peter Jackson said that the appeal arose from care proceedings about four children, A, B, C and D. The older two were the children of M and F1, while the younger two were the children of M and F2.

In 2019, F2 was accused of a sexual assault by his step-daughter, A. He was tried at the Crown Court in 2020 and acquitted after both had given evidence.

In 2021, in Family Court proceedings between F2 and A's mother (M), the court made “no finding against F2 after a hearing in which A did not give evidence and played no part”, said Lord Justice Peter Jackson.

In 2022, an allegation of sexual assault was made against F2 by his daughter D. The local authority took care proceedings.

In September 2022 the local authority applied to reopen the 'non-finding' made in respect of A.

Following this, HHJ Skellorn KC granted the local authority's application for the fact-finding outcome to be reopened and “a full threshold hearing has been fixed at which she will give oral evidence”, said the Court of Appeal Judge.

F2 appealed this decision. His appeal was opposed by the other parties: the local authority, M, F1, A and the Children's Guardian.

On behalf of F2, five grounds of appeal were prepared by counsel. It was submitted that, in summary, the court was wrong:

1. To refuse a Re W assessment before determining the reopening application.
2. To consider the discharging of A's party status to be a relevant issue.
3. To consider criticism of how A was cross-examined in the criminal proceedings to be relevant.
4. To conclude that a fact-finding exercise in respect of D's allegations and their aetiology would be incomplete without the reopening of A's allegations.
5. To reopen A's allegations where no "new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before": Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13, [2022] 2 FLR 1012, [43].

The Court of Appeal judge noted that Ground 1 was not pursued.

Turning to Ground 2, Lord Justice Peter Jackson said: “Ground 2 contends that the judge was wrong to treat the circumstances of A's discharge as a party to the previous proceedings as relevant.”

He said that counsel for F2 “rightly did not press the argument in such absolute terms, instead submitting that the judge attached too much weight to this factor, but I do not accept that”.

Peter Jackson LJ continued: “As the judge said, the court was obliged to gain a clear understanding of the previous proceedings. The degree to which A had participated in them was undoubtedly a relevant matter, however it had come about, as was the reason why no appeal was brought at the time.

“The weight to be given to them was a matter for her, and it was not submitted that her approach fell outside the range of reasonable assessments.”

The Court of Appeal judge noted that the position was the same with ground 3. He said: “The judge was similarly obliged to gain an understanding of the nature of A's evidence at the criminal trial and was entitled to take a view of the nature of the cross-examination when deciding the application that was before her.”

Turning to Ground 4, Lord Justice Peter Jackson said that Ground 4 argued that even if A's allegation was true, it would “not necessarily be probative of D's allegation, and accordingly it would not be bound to affect the outcome one way or another”.

“Accordingly, solid grounds for reopening have not been shown. [Counsel for F2] rightly accepts that, were the matter being heard for the first time, each allegation might ultimately be capable of supporting the other.

“That evidently does not mean that reopening must occur, but it is a feature that the judge was entitled to weigh up, and I find her treatment of this issue at paragraph 71 to be convincing.”

He added: “It would of course be theoretically possible to determine D's allegation in isolation, but doing so would lead to considerable difficulty in assessing the alternative case against M, which concerns both D and A; further, the truth or falsity of both allegations are capable of being mutually probative.”

The Court of Appeal judge rejected each of the four grounds of appeal, and turned to the decision in Re RL, to discuss Ground 5.

RL v Nottinghamshire County Council was an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child's stepfather. “It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it”, noted Lord Justice Peter Jackson.

He continued: “However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings.”

Mr Justice Mostyn said:

"42. The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:

i) First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.

ii) Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision.

Lord Justice Peter Jackson said that “although Mostyn J spoke of interpreting the approach set down by this court conformably with 'the general law', he recognised that the test that he proposed was a different and narrower one. At a number of points he speaks of the mother's application failing…

"whether I apply the general law test of special circumstances or a more liberal interpretation of "solid grounds"."

Lord Justice Peter Jackson said the approach in Re RL should not be followed for two main reasons:

• A judge's main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.
• More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children's cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.

Lord Justice Peter Jackson dismissed the appeal. Lady Justice Nicola Davies and Lady Justice Elisabeth Laing both agreed.

Lottie Winson