CTD (A Child: Rehearing)  EWCA Civ 1316
In summary the Court of Appeal dismissed the appeal from a decision placing the father and a family friend in the pool of potential perpetrators of non-accidental injuries to the child.
This was an appeal from findings of fact that were made at a rehearing of care proceedings.
When an application is made to reopen findings of fact in a family case the court undertakes a three-stage process:
(1) It asks whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting.
(2) If that hurdle is overcome, it decides how the rehearing is to be conducted.
(3) It rehears the matter and determines the issues.
In terms of the first stage Lord Justice Peter Jackson stated at para 4, “at the first stage the applicant must show that there are solid grounds for believing that a rehearing will result in a different finding. Mere speculation and hope are not enough.”
In terms of the second stage when the court makes case management decisions determining how the rehearing will take place and be arranged, it is “also an important discipline to ensure that the hearing does not become a free-for-all in which evidence is repeated and issues reopened without good reason.” [para 5]
The third stage is the rehearing itself. Lord Justice Peter Jackson said at para 8, “the description of the event as a rehearing rather than a review is deliberate: once a decision has been taken to reopen the case the court approaches the task of fact-finding in the conventional way and reaches its own conclusions. It does not give presumptive weight to the earlier findings, as that would risk depriving the exercise of its fundamental purpose of doing justice and achieving the right outcome for the child.”
The Court of Appeal used this case to take the opportunity to draw together and simplify the approach to be taken when an application is made to reopen findings of fact in a family case.
Lord Justice Peter Jackson set out, “In my view the concepts of ‘a starting point’, ‘strong’ evidence, ‘making the running’ and ‘an evidential burden’ which have ebbed and flowed in the distinguished judgments that developed the ground rules in this area, can now be laid aside as adding nothing and as being a possible source of misunderstanding. Of course the product of the rehearing will be that the earlier finding should or should not to be changed, but it is only in that very limited sense that the original finding is the starting point. Likewise, the original evidence was clearly strong enough to justify the original findings, but to describe evidence as strong before it is reconsidered is to beg the question that has to be decided. Lastly, concepts of ‘making the running’ and of an ‘evidential burden’ apply at the first stage (when securing a rehearing) and may do at the second stage (when persuading the court that a particular issue needs to be revisited). By the time of the rehearing itself the applicant will already have made the running by successfully adducing evidence to persuade the court to carry out in appropriate kind of rehearing and there is no need for further safeguards against unwarranted challenges to settled findings.” [para 12]
“Accordingly the simple position is that when it carries out a rehearing the court looks at all the evidence afresh and reaches its own conclusions, requiring the party seeking the relevant findings to prove them to the civil standard in the normal way. The practical arrangements for the hearing may well be influenced by what occurred in the earlier proceedings, but insofar as the concepts mentioned in the previous paragraph might suggest that a rehearing is in principle a different process to an ordinary fact-finding, that would be wrong.” [para 13]
In terms of background, in a judgment on 19th August 2015 in care proceedings concerning 4 children. Her Honour Judge Hughes found that a family friend AO had caused a number of serious injuries to the youngest child C a girl who was then under 2 years old at times when she was caring for C on behalf of her parents. Those findings were reconsidered at a rehearing by MacDonald J. In a judgment given on 1st May 2019 he confirmed the finding that the last injury (a spiral fracture to the femur inflicted on 7th September 2014) had been caused by AO but he amended the findings in relation to 4 earlier bony injuries and substituted a ‘pool finding’ that those injuries had been caused either by father or by AO. No challenge to that decision has been made by father but AO appealed contending that the wrong approach was taken to the assessment of the evidence at the rehearing. [para 14]
The rehearing took place because in later proceedings concerning a number of children including 4 children of the parents and a child of AO MacDonald J had heard evidence and made findings of very serious sexual and physical abuse of all 4 children of both parents at and before the time of C’s injuries. That evidence had not been available to HHJ Hughes who had accepted the evidence of the parents in preference to that of AO.
The grounds of appeal to the Court of Appeal were on the basis the Judge adopted a standard of review in relation to the earlier findings that gave excessive weight to the judgment of HHJ Hughes and insufficient weight to the evidence which caused him to reopen the findings made by her and in adopting the incorrect standard of review the judge reversed the standard of proof, requiring the applicant/appellant to demonstrate that the original findings were wrong rather than requiring the local authority to prove them, amongst other grounds.
The appellant contended that the judge essentially went wrong in two ways: firstly that he did not approach the reopening of the fact-finding in the right way, he should have reconsidered all of the evidence but he instead restricted himself to a review of the previous findings in the light of the new evidence and this first error led to the second that the judge privileged the old evidence over the new effectively reversing the burden of proof and requiring AO to show that the previous finding was wrong, as if the court was engaged on an appeal and not on a rehearing. [para 23]
Lord Justice Peter Jackson concluded that “The Judge’s description of his task as ‘not re-trying the issue in toto’ was not correct but the judgment shows that this misdirection did not lead to any error of substance. He fully reheard the case and factored in all of the evidence when reaching his conclusions. He did not privilege the previous findings or discriminate against the later evidence. He did not reverse the burden of proof. I therefore reject the first basis upon which this appeal is brought.” [para 27]
“The judgment shows that he [MacDonald J] fully grasped the issues and it was not necessary for him to set out every submission and response in full detail he was clearly alert to the significance of his findings about the parents and to the inherent probabilities.” [para 28]
“In the end, this was a case where the revelations about the parents’ behaviour were so striking that the court rightly undertook a thorough rehearing of its earlier findings. Having done so, it might have reversed those findings, but its reasoned analysis of the evidence instead led it to amend them. The decision withstands the challenges that have been made and I would dismiss the appeal.” [para30]