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When Can Judges Change Their Minds? The Supreme Court’s judgment in L and B (Children)

Martha Gray, barrister at 42 Bedford Row, considers whether and in what circumstances a judge who has announced her decision is entitled to change her mind, particularly in the context of fact-finding hearings in care proceedings, in the light of the Supreme Court’s recent judgment.

In L and B (Children) [2013] UKSC 8, a judgment handed down on 20th February 2013, the Supreme Court considered whether and in what circumstances a judge who has announced her decision is entitled to change her mind.  It further considered the extent to which different principles apply in the context of fact finding hearings in care proceedings in a family court.

The facts
Proceedings arose out of a series of non-accidental injuries inflicted upon the parents' daughter (known in the judgment as "Susan") on or around 21st September 2010.  A fact finding hearing was listed in order 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. The fact finding hearing commenced on 31st May 2011 but unfortunately was beset by difficulties and delays, in large part due to the mother's ill-health.  It finally concluded on 25th November 2011.

On 15th December 2011 Judge Penna delivered her first judgment orally.  It was headed "Preliminary Outline Judgment approved by the Court" and ran to only some 15 paragraphs.  While the judge did not address the evidence in any great detail she nevertheless reached the clear conclusion that the father was the perpetrator and this was recorded as a recital to the order which followed.  Unbeknown to anyone at the time, Manchester County Court did not formally seal this order until 28th February 2012.

At the hearing on 15th December 2011 and by email the following day, counsel for the father asked the judge to address a number of matters in an addendum to her judgment.  At a directions hearing on 23rd January 2012, Judge Penna duly ordered that a perfected judgment would be distributed by 9th February and deemed to have been handed down on the date of distribution. 

On 15th February 2012 the judge handed down her written "perfected judgment".  This expanded upon the earlier judgment in some respects but departed substantially from the conclusion reached in the earlier judgment, finding instead that it was not possible to exclude either parent from the pool of possible perpetrators.

On 18th July 2012, the Court of Appeal, by a majority, allowed the mother's appeal, quashed the judgment of 15th February 2012 and ordered that the findings of 15th December 2011 "stand as the findings of fact as to the perpetration of the injuries" (Re L-B (Reversal of Judgment) [2012] EWCA Civ 984).

The appeal
The Supreme Court granted the father permission to appeal and the appeal was heard on 21st January 2013.  In essence the Court held that:

i. It is a matter of established law that judges have jurisdiction to reverse their decisions at any time before the order is drawn up and perfected;

ii. The exercise of that jurisdiction is not subject to exceptional circumstances: judges should be guided by the overriding objective to deal with the case justly.

In respect of (i) the judgment represents a re-statement of well-established legal principle. Indeed, by the time the case reached the Supreme Court each of the parties accepted that the judge had the power to vary her decision, although there were passages in the Court of Appeal judgment that arguably suggested otherwise (as Baroness Hale notes at paragraph 15 of the judgment).

Sweeping away the Barrell limitation
More contentious was the question of when and in what circumstances it would be proper for a judge to exercise that discretion.  In considering that question Baroness Hale reviews the authorities at some length, looking in particular at "the Barrell jurisdiction"; whether the discretion to vary decisions should be limited to 'exceptional circumstances' (In re Barrell Enterprises [1973] 1 WLR 19).  She highlights the poor reception of the Barrell limitation in recent years: from Pittalis v Sharefaith [1986] 1 QB 868 in which Dillon LJ described it as having been "emasculated into insignificance"; to Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 in which May LJ termed it "no more than a relatively uninformative label" (paragraph 94) and Peter Gibson LJ expressed concerns "about elevating that correct description of the circumstances [as] exceptional into some sort of criterion for what is required" (paragraph 120).  The Court goes on to consider alternative formulations of the Barrell principle, namely Rix LJ's "strong reasons" at paragraph 43 of Cie Noga D'Importation et d'Exportation SA v Abacha [2001] 3 All ER 513 but clearly prefers the view of Clarke LJ in Stewart v Engel [2000] 1 WLR 2268 that it should be dispensed with altogether.

Baroness Hale concludes at paragraph 27:

"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's dissenting judgment] in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly…  A carefully considered change of mind can be sufficient.  Every case is going to depend upon its particular circumstances."

Judge Penna's change of mind
Thus, the Court held that Judge Penna was entitled to proceed in the way that she did and the appeal was allowed on the basis that the Court of Appeal had applied an exceptionality test which is no longer "the correct approach" (paragraph 29).  While recognising the importance of finality their Lordships did not attach to it the same great weight as the Court of Appeal.  Rather, the judgment echoes the dissenting judgment of Rimer LJ in its insistence 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.  Furthermore, the Court was not persuaded that any party had irretrievably changed its position in light of the 15th December judgment. 

Although their Lordships noted (at paragraph 30) that there may be situations in which the parties should be offered the opportunity to address the judge on whether she should or should not change her decision – particularly where there has been a long interval between the two decisions – they rejected the suggestion that the judge should have done so in this particular case, on the basis that she had already received very full written submissions in addition to hearing the oral evidence itself.

Judicial change of mind and fact-finding hearings generally
The judgment further considers the position had the 15th December order been formally drawn up and sealed as everyone thought and asks whether, in the context of care proceedings, a judge can revisit earlier findings simply on the basis of a judicial change of mind.  The Court of Appeal had framed its judgment as though it had, determining it to be "of little or no consequence that the order recording the first judgment had not yet been sealed in the court office at the date of the second judgment [since] justice cannot depend on the functioning of an overworked and underfunded court office" (per Sir Stephen Sedley at paragraph 74).  Thus, the question which fell to be determined at the Court of Appeal was the more general one: the extent of a judge's discretion to change her mind in the context of split hearings.  In contrast, the Supreme Court is clear that "the point does not arise in this case"; in other words, the appeal was allowed strictly on the basis that at the relevant time the order had not yet been drawn up and sealed.

Thus, where the ratio at the Court of Appeal had been that the relevant order was, in any case, the final care order made at the end of hearing, such that a judicial change of mind is permissible at any point until then, the Supreme Court declines to consider the case in those terms.  Nevertheless, the Court poses the hypothetical question "what if the order had been sealed?"  The judgment points out that under CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 the courts have power to vary or revoke their previous case management orders provided they act in accordance with the overriding objective, and asks whether it should 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 (paragraph 40).

Baroness Hale reiterates that, whether an order is sealed or not, 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. She further points out that allowing a judicial change of mind will avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.  The Court suggests that 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". 

However, the Court expresses concerns that if a judge in care proceedings were simply entitled to change his mind, it would destabilise the platform of established facts which it is the very purpose of the split hearing to construct and throw the hearing at the second stage into disarray.  In addition, judges would be left vulnerable to invitations by counsel to revisit their earlier findings in which case the judge would effectively be hearing an appeal against himself.  The Court therefore concludes that the arguments "are so finely balanced that we shall refrain from expressing even a provisional view upon it" and ends with the warning that "judicial tergiversation is not to be encouraged".

22/2/13