JUDGMENT
In the matter of L and B (Children)
before
Lord Neuberger, President
Lady Hale
Lord Kerr
Lord Wilson
Lord Sumption
JUDGMENT GIVEN ON
20 February 2013
Heard on 21 January 2013
Appellant Respondent
Gwynneth Knowles QC Anthony Hayden QC
Sarah Kilvington Karl Rowley
(Instructed by Russell and (Instructed by Bolton
Russell Solicitors) Council Legal Services)
Respondent
Charles Geekie QC
Rachael Banks
(Instructed by CMA Law)
Respondent
Gillian Irving QC
(Instructed by Barkers
Solicitors)
Respondent
Frances Judd QC
Linda Sweeney
(Instructed by AFG Law)
LADY HALE (with whom Lord Neuberger, Lord Kerr, Lord Wilson and
Lord Sumption agree)
1. The issue in this case is whether and in what circumstances a judge who has
announced her decision is entitled to change her mind. The issue arises in the
context of fact-finding hearings in care proceedings in a family court, but it could
obviously arise in any civil or family proceedings. So a subsidiary question is
whether the principles are any different in that context.
2. One difference is that section 1(2) of the Children Act 1989 requires that
any court hearing a case in which a question about the upbringing of a child arises
is to have regard to the general principle that delay in determining it is likely to
prejudice the welfare of the child. This court heard the appeal on 21 January 2013.
The final hearing to determine the future of the child in question was fixed to take
place the following week. Accordingly, we announced our decision to allow the
appeal at the end of the hearing, with judgment to follow.
The facts
3. The proceedings concern a little girl whom I shall call Susan, who was
born on 8 July 2010, and her elder half brother whom I shall call Terry, who was
born on 30 January 2006. On 21 September 2010, Susan was taken to hospital by
her mother and found to have suffered a number of fractures to her ribs, clavicle
and long bones, as well as some bruising to her face and head. Care proceedings
were brought in respect of both children three days later. Susan was placed in
foster care, where she has remained ever since. Terry was initially removed from
his home with his maternal grandparents, but was returned to them after a few
days, and has remained with them ever since.
4. On 15 November 2010, Judge Penna directed that the case be listed for a
fact finding hearing to determine the nature and extent of Susan’s injuries, their
causation whether accidental or non-accidental, and if non-accidental, the identity
of the perpetrator or perpetrators. That hearing began on 31 May 2011.
Unfortunately, it became necessary to adjourn the hearing on the second day,
because of the mother’s mental health. She suffers from a serious mental illness
and was unable to cope with giving evidence in the ordinary way. The hearing was
resumed on 26 September 2011, with the mother giving evidence via a video-link,
but she was also unable to cope with this. On 29 September the judge concluded
that the mother lacked the capacity to take part in the proceedings and invited the
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Official Solicitor to act as her litigation friend. This he agreed to do on 20 October
2011.
5. The fact finding hearing resumed on 22 November and concluded on 25
November 2011. The mother gave no more evidence but the father gave evidence
over two days. Thus the father was cross-examined but the mother was not. The
judge also heard oral evidence from various family members and from the
paediatric sister at the time of Susan’s admission to hospital, the health visitor, and
the mother’s community psychiatric nurse. She had written reports from the
medical witnesses about the nature and causation of Susan’s injuries. By that stage
it was common ground that these were non-accidentally caused and that the only
possible perpetrators were the mother and the father. The judge also had written
psychiatric reports about the mother’s mental condition. After the conclusion of
the evidence, the parties made written submissions. The local authority, in a
noticeably balanced account of the evidence, submitted that it was not possible to
identify a sole perpetrator on the evidence. The mother argued that the father was
sole perpetrator and the father argued that the mother was sole perpetrator. The
children’s guardian took a neutral stance.
6. The judge gave her first judgment orally on 15 December 2011. When it
was partially transcribed much later (the recording started after the judge had
begun to deliver judgment but we are told that nothing of substance has been
missed), the judgment was headed ‘Preliminary Outline Judgment approved by the
Court’. The transcript consists of only 15 paragraphs. It does not deal at all with
the specifics of the injuries to the child, their nature, or their timing. It concentrates
on the stresses upon the family caused by financial problems, the mother’s mental
illness, and caring for a young baby who cried often and was not easy to feed. It
concluded that the pressures upon the father, who took the lion’s share of the
responsibility for looking after Susan, became intolerable and he snapped. So the
finding was that the father was the perpetrator, although the judge took care to
stress that under ordinary circumstances he was a loving and competent parent and
had a valuable role to play in his daughter’s life. The judge also stated that if any
party would be assisted by the provision of detail in relation to specific points, she
would address them.
7. At that hearing and by email the following day, counsel for the father asked
her to address a number of matters in an addendum to her judgment: the context in
which both mother and father had given their evidence; the mother’s opportunity
to have perpetrated the injuries; the inconsistencies in the mother’s account; the
mother’s lack of parenting skills and what she did when the baby cried and the
father was not there. This accords with the guidance given in In re A (Children)
(Judgment: Adequacy of Reasoning) (Practice Note), [2011] EWCA Civ 1205,
[2012] 1 WLR 595. At para 16, Munby LJ stressed that:
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“. . . it is the responsibility of the advocate, whether or not invited to
do so by the judge, to raise with the judge and draw to his attention
any material omission in the judgment, any genuine query or
ambiguity which arises on the judgment, and any perceived lack of
reasons or other perceived deficiency in the judge’s reasoning
process.”
8. The order drawn up as a result of the judgment of 15 December recorded
that the “Court provided a summary judgment in respect of the fact finding hearing
where the father was seen to have caused the injuries to [the child]”. It went on to
order the next steps in the case, including an experts’ meeting before a further
directions hearing on 23 January 2012, with the final hearing provisionally booked
for 20 February 2012. Unbeknown to anyone at the time, that order was not
formally sealed by the Manchester County Court until 28 February 2012.
9. The local authority’s care plan was for Susan to be placed with the maternal
grandparents where her half brother Terry was already living. At the directions
hearing on 23 January 2012, it was recorded that the court would use three days of
the hearing beginning on 20 February to determine whether Susan should be
placed in the grandparents’ care. The judge ordered that a perfected judgment
would be distributed by 9 February and deemed to have been handed down on the
date of distribution. However, on 15 February, the judge delivered a bombshell in
the shape of a written “perfected judgment”. This expanded upon the earlier
judgment in some respects: it gave an account of the injuries, concluded that they
were non-accidental, that one of the parents must have been the perpetrator, that
the same parent was likely to have inflicted all the injuries, that Susan had been
injured during the course of the day before she was taken to hospital or the two or
three days beforehand, and that she had been injured on (at least) one occasion
before that. However, it reached a different conclusion from the conclusion
reached in December:
“Given the uncertain nature of the evidence after the passage of so
much time I am unable to find to the requisite standard which of the
parents it was who succumbed to the stress to which the family was
subject. It could have been either of them who injured [Susan] and
that is my finding.”
10. At the hearing on 20 February, counsel for the mother asked the judge to
explain why she had changed her mind and not given the parties an opportunity to
make further submissions before doing so. She delivered a short extempore
judgment apologising to the parties, although she did “not view the development
of this matter as a complete change of direction and the scenario which I posited
when giving my view in December remains a possibility”. She went on, “the
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decision I reached had to be reached on the balance of probabilities and when I
considered the matter carefully I could not exclude the mother because I was not
sufficiently satisfied that no time had arisen when she had been alone with the
child and might have caused some injury”.
11. The order made on 20 February recorded that “The mother through her
counsel, supported by the other parties, sought clarification of the reasons behind
the court’s determination that it could not identify a sole perpetrator as between the
mother and the father in its judgment of 15 February 2012, compared with the
conclusion indicated in the preliminary judgment of 15 December 2011”. It was
ordered that the hearing listed for 23 February should be for case management,
with a view to a further assessment of the father as a carer for Susan, rather than
for considering the placement with the maternal grandparents.
12. The mother, the Official Solicitor still acting as her litigation friend, was
granted permission to appeal against the February judgment. The Grounds of
Appeal complained, firstly, that the second judgment was “flawed and/or unjust.
No adequate reasons have been provided to account for the change of decision and
to place the mother back into the pool of possible perpetrators”, and secondly,
“that no opportunity to make further representations was afforded to the mother”
beforehand. Before the appeal hearing, the mother and the children’s guardian
proposed that the case should be remitted to the judge for amplification and
clarification of her change of mind. The local authority and the father argued that it
had been adequately explained. No-one was suggesting that the December findings
be restored without more ado.
13. At the outset of the appeal hearing on 14 June 2012, the court suggested to
the mother’s counsel that she should be arguing that the judge was functus officio
after the December judgment had been recorded in a perfected order. Only after
inquiries were made of the Manchester Civil Justice Centre did it emerge that the
order had not in fact been sealed until 28 February. Nevertheless, the Court of
Appeal, by a majority, not only allowed the mother’s appeal but ordered that the
findings of 15 December 2011 “stand as the findings of fact as to the perpetration
of the injuries”, the judgment of 15 February 2012 was quashed, and all reference
to it excised from the orders made on 20 and 23 February.
14. The father now appeals to this court. With the support of the local authority,
the children’s guardian and (tellingly) the maternal grandparents, he argues that the
judge was entitled to change her mind and the February judgment should be
restored. The mother, now acting on her own behalf, opposes this. Given the
passage of time, no party is suggesting that the case be remitted, either for further
clarification of the judge’s reasoning or for a rehearing. The judge has now recused
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herself and the final hearing took place before His Honour David Gee in the week
beginning 28 January 2013.
15. The parties’ written submissions to this court spent some time discussing
whether the majority in the Court of Appeal decided (a) that the judge had no
jurisdiction to change her mind; or (b) that she had such a jurisdiction but should
not have exercised it on the facts of this case. For reasons which will later appear,
I believe that they must have meant (b), although there are passages, particularly in
the judgment of Sir Stephen Sedley which are more consistent with (a). But we do
not need to discuss what they really meant, as those are the very issues before this
court. Rimer LJ dissented. He held that the judge did have jurisdiction and was
entitled to exercise it in the way that she did.
The jurisdiction
16. It has long been the law that a judge is entitled to reverse his decision at any
time before his order is drawn up and perfected.
17. The modern story begins with the Judicature Acts 1873 (36 & 37 Vict c 66)
and 1875 (38 & 39 Vict c 77), which amalgamated the various common law,
chancery and doctors’ commons jurisdictions into a single High Court and created
a new Court of Appeal for England and Wales. In In re St Nazaire Company
(1879) 12 Ch D 88, the Court of Appeal decided that there was no longer any
general power in a judge to review his own or any other judge’s orders. Sir
Richard Malins V-C had permitted a petition to proceed which sought to vary an
earlier order which he had made and which had been unsuccessfully appealed to
the Court of Appeal. The Court of Appeal held that he had no power to do so. Sir
George Jessel MR explained that the Judicature Acts had changed everything.
Before they came into force, the Lord Chancellor, Vice-Chancellor and Master of
the Rolls had power to rehear their own decisions and, indeed, the decisions of
their predecessors. He remarked that “the hope of every appellant was founded on
the change of the judge”: p 98. (An example of Jessel MR revisiting one of his
own orders is In re Australian Direct Steam Navigation (Miller’s Case) (1876) 3
Ch D 661). But such an application was in the nature of an appeal and jurisdiction
to hear appeals had now been transferred to the Court of Appeal. Thesiger LJ
added that, “whatever may have been the practice in the High Court of Chancery
before the Judicature Act as to the review of their decisions or the rehearing of
their decisions, nothing can be clearer than that there was nothing analogous to that
in the Common Law Courts” 12 Ch D 88, 101. The court’s conclusions
harmonised the practice in all Divisions of the newly amalgamated High Court.
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18. Nothing was said in In re St Nazaire about the position before the judge’s
order was perfected. In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693, a
High Court judge had made an order in bankruptcy proceedings which had the
effect of varying a charging order which he had earlier made under the Solicitors
Act 1860 (23 & 24 Vict c 127). All the members of the Court of Appeal, citing In
re St Nazaire, agreed that he had no power to do this once his order had been
drawn up and perfected. Unlike the bankruptcy jurisdiction, the Solicitors Act gave
no power of variation. As Fry LJ put it, at p 697:
“So long as the order has not been perfected the judge has a power of
re-considering the matter, but, when once the order has been
completed, the jurisdiction of the judge over it has come to an end.”
Strictly speaking, the reference to what may be done before the order is perfected
was obiter, but that this was the law was established by the Court of Appeal no
later than the case of Millensted v Grosvenor House (Park Lane) Ld [1937] 1 KB
717, where the judge had revised his award of damages before his order was drawn
up and the court held that he was entitled to do so.
19. Thus there is jurisdiction to change one’s mind up until the order is drawn
up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is
now perfected by being sealed by the court. There is no jurisdiction to change
one’s mind thereafter unless the court has an express power to vary its own
previous order. The proper route of challenge is by appeal. On any view, therefore,
in the particular circumstances of this case, the judge did have power to change her
mind. The question is whether she should have exercised it.
Exercising it
20. As Wilson LJ pointed out in Paulin v Paulin [2009] EWCA Civ 221, [2010]
1 WLR 1057, para 30(c), “Until 1972 the courts made no attempt to narrow the
circumstances in which it would be proper for a judge to exercise his jurisdiction
to reverse his decision prior to the sealing of the order”. He referred to In re
Harrison’s Share Under a Settlement [1955] Ch 260, in which the judge recalled
an order approving the variation of a settlement on behalf of infant, unborn and
unascertained persons, because after he had pronounced it but before it was
formally drawn up the House of Lords had decided that there was no power to
make such an order. The Court of Appeal rejected the submission that the order
could only be corrected for manifest error or omission (as can a perfected order
under the “slip rule”): “When a judge has pronounced judgment he retains control
over the case until the order giving effect to his judgment is formally completed”:
pp 283-284. The court went on to say that “This control must be . . . exercised
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judicially and not capriciously” but that was all. The court clearly contemplated
that people might act upon an order before it was drawn up, but they did so at their
own risk.
21. In 1972, however, the Court of Appeal decided In re Barrell Enterprises
[1973] 1 WLR 19, in which it refused to allow the re-opening of an unsuccessful
appeal in which judgment had been given some months previously dismissing the
appeal but the order had for some reason never been drawn up. Russell LJ, giving
the judgment of the court, stated, at pp 23-24, that:
“When oral judgments have been given, either in a court of first
instance or on appeal, the successful party ought save in the most
exceptional circumstances to be able to assume that the judgment is a
valid and effective one. The cases to which we were referred in
which judgments in civil courts have been varied after delivery
(apart from the correction of slips) were all cases in which some
most unusual element was present.”
There was no such justification in that case.
22. In Paulin [2010] 1 WLR 1057, 1070, Wilson LJ also pointed out that the
limitation thus placed on the proper exercise of the jurisdiction was “not
universally welcomed”. In Pittalis v Sherefettin [1986] 1 QB 868, Dillon LJ had in
effect “emasculated [it] into insignificance” by pointing out that it was exceptional
for a judge to be satisfied that the order he had previously pronounced was wrong.
23. In Stewart v Engel [2000] EWCA Civ 362, [2000] 1WLR 2268, the Court
of Appeal unanimously held that the power to recall orders before perfection had
survived the coming into force of the Civil Procedure Rules 1998. However, for
some reason (probably the submissions of counsel) they termed this “the Barrell
jurisdiction”. By a majority, they affirmed the Barrell limitation, which Sir
Christopher Slade said “must apply a fortiori where the judgment is a formal
written judgment in final form, handed down after the parties have been given the
opportunity to consider it in draft and make representations on the draft”: pp 2274,
2276.
24. Clarke LJ dissented on this point. He did not think that the court was bound
by Barrell to look for exceptional circumstances. He clearly took as a starting
point the overriding objective in the Civil Procedure Rules of enabling the court to
deal with cases justly. He considered that the judge had been right to direct himself
that the examples given by Neuberger J in In re Blenheim Leisure (Restaurants)
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Ltd (No 3), The Times, 9 November 1999,- a plain mistake by the court, the
parties’ failure to draw to the court’s attention a plainly relevant fact or point of
law and the discovery of new facts after judgment was given – were merely
examples: “How the discretion should be exercised in any particular case will
depend upon all the circumstances”: [2000] 1WLR 2268, 2285 .
25. Other formulations of the Barrell principle have been suggested. In Cie
Noga D’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513, Rix LJ,
sitting in the Commercial Court, referred at para 42 to the need to balance the
concern for finality against the “proper concern that courts should not be held by
their own decisions in a straitjacket pending the formality of drawing up the
order”. He went on, at para 43:
“Provided that the formula of ‘exceptional circumstances’ is not
turned into a straitjacket of its own, and the interests of justice and its
constituents as laid down in the overriding principle are held closely
to mind, I do not think that the proper balance will be lost. Clearly, it
cannot be in every case that a litigant should be entitled to ask the
judge to think again. Therefore, on one ground or another the case
must raise considerations, in the interests of justice, which are out of
the ordinary, extraordinary or exceptional. An exceptional case does
not have to be uniquely special. ‘Strong reasons’ is perhaps an
acceptable alternative to ‘exceptional circumstances’. It will
necessarily be in an exceptional case that strong reasons are shown
for reconsideration.”
26. In Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 May LJ
commented that “that expression [“exceptional circumstances”] by itself is no
more than a relatively uninformative label. It is not profitable to debate what it
means in isolation from the facts of a particular case” (para 94). Peter Gibson LJ
commented, at para 120:
“With one possible qualification it is in my judgment
incontrovertible that until the order of a judge has been sealed he
retains the ability to recall the order he has made even if he has given
reasons for that order by a judgment handed down or orally
delivered. . . . Such judicial tergiversation is in general not to be
encouraged, but circumstances may arise in which it is necessary for
the judge to have the courage to recall his order. If . . . the judge
realises that he has made an error, how can he be true to his judicial
oath other than by correcting that error so long as it lies within his
power to do so? No doubt that will happen only in exceptional
circumstances, but I have serious misgivings about elevating that
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correct description of the circumstances when that occurs as
exceptional into some sort of criterion for what is required . . . ”
The possible qualification was when the judgment has been reasonably relied upon
by a party who has altered his position irretrievably in consequence.
27. Thus one can see the Court of Appeal struggling to reconcile the apparent
statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper
desire to discourage the parties from applying for the judge to reconsider, with the
desire to do justice in the particular circumstances of the case. This court is not
bound by Barrell or by any of the previous cases to hold that there is any such
limitation upon the acknowledged jurisdiction of the judge to revisit his own
decision at any time up until his resulting order is perfected. I would agree with
Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding
objective must be to deal with the case justly. A relevant factor must be whether
any party has acted upon the decision to his detriment, especially in a case where it
is expected that they may do so before the order is formally drawn up. On the other
hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some
examples of cases where it might be just to revisit the earlier decision. But these
are only examples. A carefully considered change of mind can be sufficient. Every
case is going to depend upon its particular circumstances.
Exercising the discretion in this case
28. If that be the correct approach, was this judge entitled to exercise her
discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to
adhere to the conclusion in her December judgment, having recited (at para 55) the
clarity of the conclusion reached, the general assumption that the order had been
perfected, the general implementation of her conclusion, her adherence to it at the
hearing on 23 January, and the absence of any change in the circumstances and the
“general slackness” that left the order unsealed. He was also somewhat puzzled as
to why the result of her change of mind was “seemingly to elevate the father from
low to first consideration as the primary carer, albeit the rationality of that
elevation is not clear to me, given that he remained a suspected perpetrator” (para
56). Sir Stephen Sedley held that something more than a change in the judge’s
mind was required, because “it will only be exceptionally that the interests of
finality are required to give way to the larger interests of justice” (paras 79, 80).
Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath
by correcting what she had come to realise was a fundamental error on her part. . .
. the judge would be presented with real difficulty in her future conduct of this case
were she required to proceed with it on the basis of a factual substratum that she
now believes to be wrong. The court should not be required to make welfare
decisions concerning a child on such a false factual basis”. It could not be in the
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interests of the child to require a judge to shut his eyes to the reality of the case and
embrace a fiction.
29. The Court of Appeal were, of course, applying an exceptionality test which
in my view is not the correct approach. They were, of course, right to consider the
extent to which the December decision had been relied upon by the parties, but in
my view Rimer LJ was also correct to doubt whether anyone had irretrievably
changed their position as a result. The care plan may have been developed (we do
not have the details of this) but the child’s placement had yet to be decided and she
had remained where she was for the time being. The majority were, of course, also
right to stress the importance of finality, but the final decision had yet to be taken.
I agree with Rimer LJ that no judge should be required to decide the future
placement of a child upon what he or she believes to be a false basis. Section 1(1)
of the Children Act 1989 provides that where a court determines any question with
respect to the upbringing of a child the welfare of the child shall be its paramount
consideration. While that provision does not apply to procedural decisions made
along the way, it has to govern the final decision in the case.
30. Mr Charles Geekie QC, on behalf of the mother, argues that even if the
judge was entitled to change her mind, she was not entitled to proceed in the way
that she did, without giving the parties notice of her intention and a further
opportunity of addressing submissions to her. As the court pointed out in Re
Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be
exercised “judicially and not capriciously”. This may entail offering the parties the
opportunity of addressing the judge on whether she should or should not change
her decision. The longer the interval between the two decisions the more likely it is
that it would not be fair to do otherwise. In this particular case, however, there had
been the usual mass of documentary material, the long drawn-out process of
hearing the oral evidence, and very full written submissions after the evidence was
completed. It is difficult to see what any further submissions could have done,
other than to re-iterate what had already been said.
31. For those reasons, therefore, we ordered that the father’s appeal against the
decision of the Court of Appeal be allowed. No party had sought to appeal against
the judge’s decision of 15 February 2012, so the welfare hearing should proceed
on the basis of the findings in the judgment of that date. We were pleased
subsequently to learn that agreement has now been reached that Susan should be
placed with her half-brother and maternal grandparents under a care order and,
after a settling-in period, have visiting and staying contact with her father and her
paternal family. The local authority plan to work with both families with a view to
both mother and father having unsupervised contact in the future and it is hoped
that the care order will be discharged after a period of one to two years.
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But what if the order had been sealed?
32. On the particular facts of this case, that is all that need be said. But what
would have been the position if, as everyone thought was the case, the order made
by the judge on 15 December 2011 had been formally drawn up and sealed?
Whatever may be the case in other jurisdictions, can this really make all the
difference in a care case?
33. The Court of Appeal, despite having themselves raised the point, do not
appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of
little or no consequence that the order recording the first judgment had not been
sealed or that a final order in the case remained to be made (para 74). Both Thorpe
and Rimer LJJ held that the relevant order in care proceedings is the final care
order made at the end of the hearing. They expressly agreed with Munby LJ in In
re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205,
[2012] 1 WLR 595, para 21. This was a case in which the mother challenged the
adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her
daughter in a fact-finding hearing in care proceedings. Having quoted my
observation in In re B (Children: Care Proceedings: Standard of Proof)
(CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part
of the whole process of trying the case and once completed the case is part-heard,
Munby LJ continued, at para 21:
“Consistently with this, the findings at a fact-finding hearing are not
set in stone so as to be incapable of being revisited in the light of
subsequent developments as, for example, if further material
emerges during the final hearing: see In re M and MC (Care: Issues
of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”
34. This court has since agreed with that proposition. In Re S-B
(Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC
678, all seven justices agreed that:
“It is now well-settled that a judge in care proceedings is entitled to
revisit an earlier identification of the perpetrator if fresh evidence
warrants this (and this court saw an example of this in the recent case
In re I (A Child) (Contact Application: Jurisdiction) (Centre for
Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)
35. There are many good reasons for this, both in principle and in practice.
There are two legal issues in care proceedings. First, has the threshold set by
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section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount
consideration of the child’s welfare require to be done about it? Much of the
evidence will be relevant to both parts of the inquiry. It may be very helpful to
separate out some factual issues for early determination, but these do not always
neatly coincide with the legal issues. In this case, for example, there was no
dispute that the threshold had been crossed. Nevertheless, it was convenient to
attempt to identify who was responsible for the child’s injuries before moving on
to decide where her best interests lay. In such a composite enquiry, the judge must
be able to keep an open mind until the final decision is made, at least if fresh
evidence or further developments indicate that an earlier decision was wrong. It
would be detrimental to the interests of all concerned, but particularly to the
children, if the only way to correct such an error were by an appeal.
36. This is reinforced by the procedural position. As Munby LJ pointed out in
In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there
may not be an immediate order at all. It was held in In re B (A Minor) (Split
Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to
an appeal. Nevertheless, it would be very surprising these days if there were no
order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA
Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of
fact made at a fact finding hearing should be the subject of recitals to an order
issued there and then. But this is merely a recital in what is, on any view, an
interlocutory order.
37. Both the Civil Procedure Rules and the Family Procedure Rules make it
clear that the court’s wide case management powers include the power to vary or
revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of
the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on
application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the
absence of any power in the judge to vary his own (or anyone else’s) orders which
led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex
p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic
in the sealing of the order being varied or revoked. The question becomes whether
or not it is proper to vary the order.
38. Clearly, that power does not enable a free-for-all in which previous orders
may be revisited at will. It must be exercised “judicially and not capriciously”. It
must be exercised in accordance with the over-riding objective. In family
proceedings, the overriding objective is “enabling the court to deal with cases
justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family
Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with
that objective if the court could not revisit factual findings in the light of later
developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good
example. At the fact finding hearing, the judge had found that Mr C, and not the
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mother, had inflicted the child’s injuries. But after that, the mother told a social
worker, whether accurately or otherwise, that she had inflicted some of them. The
Court of Appeal ruled that, at the next hearing, the judge should subject the
mother’s apparent confession to rigorous scrutiny but that, if he concluded that it
was true, he should alter his findings.
39. The question is whether it makes any difference if the later development is
simply a judicial change of mind. This is a difficult issue upon which the
arguments are finely balanced, not least because the difference between a change
of circumstances and a change of mind may not be clear-cut.
40. On the one hand, given that the basis of the general rule was the lack of a
power to vary the original order and there undoubtedly is power to vary these
orders, why should it make any difference in principle if the reason for varying it is
that, on mature reflection, the judge has reached a different conclusion from the
one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot
be in the best interests of the child to require the judge to conduct the welfare
proceedings on the basis of a false substratum of fact. That would have been just as
true if the December order had been sealed as it was when it had not.
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.
42. Mr Geekie, on behalf of the mother, also argued that the sealing of the order
could not invariably be the cut-off point. If a judge is asked, in accordance with the
guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002]
EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1
WLR 595, to elaborate his reasoning and in doing so realises that his original
decision was wrong, should he not, as part of that process, be entitled or even
required to say so? The answer to this point may very well be that the judge should
indeed have the courage to admit to the Court of Appeal that he has changed his
mind, but that is not the same as changing his order. That is a matter for the Court
of Appeal. One argument for allowing a judicial change of mind in care cases is to
avoid the delay inevitably involved if an appeal is the only way to correct what the
judge believes to be an error.
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43. On the other hand, the disconcerting truth is that, as judges, we can never
actually know what happened: we were not there when whatever happened did
happen. We can only do our best on the balance of probabilities, after which what
we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard
of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is
entitled simply to change his mind, it would destabilise the platform of established
facts which it was the very purpose of the split hearing to construct; it would
undermine the reports, other evidence and submissions prepared on the basis of the
earlier findings; it would throw the hearing at the second stage into disarray; and it
would probably result in delay.
44. Furthermore, if a judge were entitled to change his mind, a party would
presumably be entitled to invite him to do so. No doubt most judges would do their
best to have no truck with the invitation. But could the party be prevented from
pressing for the exercise of the jurisdiction on the basis that, in his first judgment,
the judge had failed to weigh certain evidence sufficiently or at all? In effect the
judge would be invited to hear an appeal against himself. There is a distinction
between an appeal and a variation for cause. This is the principle underlying the
basic rule that an order is final once sealed.
45. The point does not arise in this case and it was not fully developed in the
arguments before us. The arguments outlined above are so finely balanced that we
shall refrain from expressing even a provisional view upon it. In our view the
preferable solution would be to avoid the situation arising in the first place.
A concluding comment
46. As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257,
para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes
courage and intellectual honesty to admit one’s mistakes. The best safeguard
against having to do so is a fully and properly reasoned judgment in the first place.
A properly reasoned judgment in this case would have addressed the matters raised
in counsel’s email of the 16 December. It would have identified the opportunities
of each parent to inflict each of the injuries by reference to the medical evidence
about the nature, manner of infliction and timing of those injuries and to the
parents’ and other evidence about their movements during the relevant periods. It
would have addressed the credibility of the evidence given by each parent, having
regard in this case to the problems presented by the mother’s mental illness. Had
she done this, the judge might well have been able to explain why it was that she
concluded that it was the father who had more than once snapped under the
tension. But she did not do so, and it is a fair inference that it was the task of
properly responding to the questions raised by counsel for the father which caused
her to reconsider her decision. No doubt the judge was anxious, given the
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vicissitudes which had beset the fact-finding hearing, to deliver her first judgment
quickly so that the welfare hearing fixed for the following February could be
maintained. But the subsequent history demonstrates all too clearly that this was a
false economy. Had that judgment been properly reasoned, none of this would
have happened. Furthermore, if the judge had not changed her mind, the father
would have had the opportunity of appealing against her findings to the Court of
Appeal. One extraordinary result of the Court of Appeal’s order in this case was
that the findings against the father were restored without his having had the
opportunity which he should have had of mounting a proper appeal against them.
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