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L-B (Children) [2012] EWCA Civ 984

Court of Appeal decision concerning a judge’s power to alter a judgment following a fact-finding hearing after it has been handed down

Her Honour Judge Penna had conducted a fact-finding hearing in care proceedings concerning serious injuries to the child involved. The fact-finding hearing was spread over 10 days between May and November 2011. Written submissions were directed for 5th December to enable judgment to be given on 15th December. A short oral judgment was given on 15th December in which the judge found the father to be the perpetrator of the injuries. She exonerated the mother. A transcript of this oral judgment was later prepared and the judge entitled it "Preliminary outline judgment approved by the court". A directions hearing was then listed for 23rd January 2012. At the hearing on 23rd January 2012, at the request of Counsel for the father, a direction was made that the Court would distribute a perfected judgment by 9th February 2012. In that perfected judgment (in fact distributed on 15th February 2012), the judge stated that she had "reconsidered the matter carefully" and had reached the view that "to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both heard and read". She thus performed a "volte-face". The matter returned to Court on 20th February. The order of 20th February recorded the change of judgment and made directions for the filing of a new care plan, given that the Local Authority had substantially changed its position (to recommend rehabilitation to the father) on the back of the change in the judgment.

The mother appealed the order of 20th February 2012.

The issue for the Court of Appeal whether the judge was permitted to change her mind in the manner in which she did. Thorpe LJ reviewed the authorities concerning a judge's jurisdiction to change a judgment. He noted, as had been argued on behalf of the Local Authority, that it had been held by Arden LJ in Re T (contact: alienation: permission to appeal) [2003]  that: "It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order." In this case, the order of 15th December had, in what Thorpe LJ described as "an extraordinary story" in fact not been sealed until 24th February. The Local Authority also argued that in the case of judgments given in fact-finding hearings, the relevant order was the order at the end of the final hearing which settled the child's future, meaning that the judge had a special licence to revise any finding as to the past expressed in the preliminary fact finding judgment, relying on the judgment of Munby LJ in Re A and L (Appeal: Fact Finding) [2011] EWCA Civ 1205, in which he had held at [21] that "the judge is entitled at any time, including the final hearing, to reconsider his earlier findings. Arden LJ's statement in Re T needs to be read with this point in mind. The relevant order for this purpose is the final order made at the end of the care proceedings". The Local Authority further argued that the judicial oath bound a judge to abandon a previously stated conclusion in which confidence had been lost and queried how a judge could conduct a welfare trial on a fundamental finding which was perceived to be misjudged.

However Thorpe LJ held that the judge was bound by her earlier conclusions. He said at [48] that "I do not draw from paragraph 21 of Munby LJ's judgment [in Re A and L], the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licences a judge generally to amend his judgment as to past facts at any time before he has pronounced his judgment as to the future." He further noted the tension which exists in the existing authorities between the principle that a judge is free to change a judgment until the resulting order is sealed (Steward v Engel [2000]) and the principle that when oral judgment is given, the successful party is entitled to rely on its validity, only to be upset in most exceptional circumstances (Re Barrell Enterprises [1973] ). In this case, Thorpe LJ noted the clarity of the conclusion announced on 15th December and the adherence to it at the hearing on 23rd January. He held that the judge was bound to adhere to that conclusion. Her obligation to particularise the judgment further did not permit her to enter a fresh, contrary conclusion (at [56]).

Sir Stephen Sedley agreed with Thorpe LJ and held at [79] that there was a need for "something more than a change in the judge's mind … to justify a reversal of a judgment". He noted at [79] that "There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for exceptional circumstance – something more than a change in the judge's mind – to justify a reversal of a judgment." He concluded at [82] that "While insistence on finality can in some situations create or compound injustice, in the ordinary was finality is itself a component of justice. The present case was in my view not one where finality had to yield to the interests of justice. Rather, if anything, the contrary."

Rimer LJ gave a dissenting judgment. He considered that it was not easy to identify how "exceptional circumstances" permitting a judge to amend a judgment were to be measured (see [70]), however in this case the judge was honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. Further, a court's determination of care proceedings was "amongst the most sensitive types of determination that a civil court is called upon to make: the circumstances of the case can, therefore, perhaps for that reason fairly be described as exceptional" (at [71]).  Rimer LJ's view was that to force the judge to work on the basis of the original judgment would "require the judge to shut his eyes and to embrace a fiction" (at [71]) and he would have dismissed the appeal.

The Court of Appeal therefore allowed the mother's appeal by a majority of 2 to 1.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers


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Neutral Citation Number: [2012] EWCA Civ 984
Case No: B4/2012/0555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Manchester Civil Justice Centre
Her Honour Judge Penna
DK10C00068

Royal Courts of Justice
Strand, London, WC2A 2LL
18/07/2012

B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE RIMER
and
SIR STEPHEN SEDLEY
____________________
Between:

 L-B (Children) 
____________________
Rachel Banks (instructed by Cyril Morris Arkwright) for the Applicant
Karl Rowley (instructed by Bolton Borough Council) and Linda Sweeney (instructed by AFG Law) for the Respondents
Hearing dates: Thursday 14 June 2012
____________________
HTML VERSION OF JUDGMENT

____________________
Crown Copyright ©

Lord Justice Thorpe :

1. This is the appeal of the mother, brought by the Official Solicitor on her behalf, against the order of 20th February made by Her Honour Judge Penna in the Manchester County Court. The appeal turns to some extent on the chronology of the proceedings in the court below which I will therefore set out in some detail.

2. Judge Penna conducted a preliminary fact finding hearing over 10 days spread between May and November 2011. The trial was fragmented by the mother's mental illness and her fluctuating ability to participate in the proceedings.

3. The evidence concluded on the 25th November and the judge directed written submissions to be filed by 5th December to enable her to give judgment on the 15th December.

4. On the 15th December the parties attended, as did a representative of Greater Manchester Police in order to pursue an application for the release of the judgment and other documentation.

5. The issue to be settled by judgment was whether or not it was possible to identify either of the parents as the sole perpetrator of serious injuries to their child.

6. The judge did not hand down a judgment, as had been anticipated, but gave an oral judgment. The recording begins after the judge has embarked on judgment. However, counsel for the Guardian took a typed note and recorded the judge's opening words to the effect that the judgment would be brief.

7. The judgment as transcribed runs to fifteen paragraphs. Therein, the judge stated that the father was the perpetrator, having snapped when under intolerable pressure. She exonerated the mother from responsibility.

8. She then said:-

"Those, in what I know are very broad terms, are the findings of the court. If any party would be assisted by the provision of detail in relation to specific points, I would by all means address those points. However, I was concerned for you to know my view in broad terms at the earliest possible date".

9. In response to the application of the representative of the Greater Manchester Police, the judge said:-

"It may assist you to know that this matter is back here for directions on 23rd January and the parties, no doubt, will have reflected upon their positions and if you wish to make further application, do come on that date."

10. Her concluding words were to this effect:-

"What Miss Sweeney is politely not saying in terms is that you need to know that I have found the injuries were caused by the father."

11. It seems that when the transcript was subsequently submitted to the judge for approval she headed it:-

"PRELIMINARY OUTLINE JUDGMENT APPROVED BY THE COURT."

12. On the 15th December the judge not only set up the directions hearing on 23rd January 2012 but also a final hearing for 5 days to commence 20th February 2012.

13. In consequence of the judgment of 15th December, the local authority's provisional care plan was for the child, born on 24th July 2010' to join her brother, born on 30th January 2006, in the care of his maternal grandparents.

14. The father's counsel, by email of 16th December, asked the judge to deal with what had not specifically been dealt with on the previous day. Those matters were identified by reference to paragraphs of counsel's written submissions filed by 5th December: namely paragraphs 3-6, 11, 17 and 31.

15. The parties re-assembled on 23rd January without the representative of the greater Manchester Police. The orders that resulted from that directions hearing simply confirm the direction set by the judgment of the 15th December. Thus amongst the recitals there are:-

"2. The Local Authority is advocating a placement of Summer with the maternal Grandparents and in light of their current care of Thomas does not believe that such a placement needs to await the Special Guardianship Report provided for below.

3. The Mother is supportive of a placement of Summer with the maternal Grandparents and half sibling Thomas.

4. The Father would agree to the maternal Grandparents caring for Summer on a long term basis only in the event that the court does not deem it appropriate for Summer to be placed in his care. Father may reflect further on this position following receipt of the perfected judgment.

5. The Court will utilise 3 days of the hearing commencing 20th February 2012 in order to determine if Summer should be placed in her Grandparents care.

16. Amongst the paragraphs of the order I cite the following:-

1. The Court will distribute a perfected judgment at the request of the Father by 4pm on 9th February 2012. The judgment will be deemed to have been handed down on the day of distribution.

2. The Local Authority shall file and serve an interim care plan and any updating evidence (if so advised) setting out detailed rehabilitation plan to facilitate Summer's placement in her Grandparents care and the support which will be provided to that placement by 4pm on 6th February 2012.

7. This matter is listed for hearing on the issue of placement before Her Honour Judge Penna on 20th February 2012 at 10.30am (Elh 3 days). All advocates shall attend at 9.30am for prior discussion. The remaining hearing dates which had been allocated to this matter during that week are hereby vacated."

17. The perfected judgment was not in fact distributed until the 15th February. In that judgment the judge stated that she had "reconsidered the matter carefully" and had reached the view that "to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard".

18. This was indeed a bombshell. There had been no warning of an impending u-turn. It undermined the draft care plan and removed the purpose and objective of the fixture on the 20th February.

19. On the 20th February counsel for the Mother did not challenge the judge's liberty to change her conclusion but only advanced an argument that the judgment of the 15th February was deficient and requested the judge to extend the judgment to make good the asserted deficiency.

20. The judge's response was the subject of a brief judgment in which in her opening paragraph she apologised to family members for subjecting them to an unpleasant and difficult period. She continued:-

"You thought the position was made clear in December and there has been a change which you have all had to accommodate, which has been particularly unpleasant for some; so I'm sorry that you've had that to go through."

21. She explained that difficulties had been caused by her "absence from work, partly through illness, partly through leave."

22. The two remaining paragraphs I cite in full:-

"2. However the 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 not been alone with the child and might not have caused some injury.

3. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view."

23. The order of the 20th February adjourned the case to the 23rd and required the Local Authority to file by the 21st details of its proposed assessment of the Father who, in the light of the judgment of 15th February, was now replacing the maternal Grandparents as the preferred option.

24. The 23rd February listing produced an order from which I cite the first three recorded paragraphs:-

"1. The Local Authority had, in accordance with the direction of the Court on 20/2/12, filed its proposed Social Assessment Plan in respect of the father. Having considered the same, the father, through his counsel, indicated that he was content with the Plan and was not seeking a direction for an independent social work assessment. The Guardian, through his counsel, also expressed his contentment with the Plan.

2. The Court too had carefully considered the Local Authority's Plan and it was satisfied that it was an appropriate way forward in respect of assessment of the father.

3. The mother, through her counsel sought permission to appeal the judgment of 15/2/12, which the Court granted."

25. The appellant's notice of the 5th March 2012 challenges the judgment of the 15th February rather than the order which records it, namely the order of the 20th February. We gave leave to the appellant to amend her Notice. We also suggested to Mr Rowley, counsel for the Local Authority who drafted the order, that paragraph two should be extended to read "The Court delivered an extempore further judgment setting out its reasons for concluding that neither parent could be identified as a sole perpetrator."

26. In preparation for the appeal the Official Solicitor on the Mother's behalf filed a skeleton argument seeking an order returning the case to the judge "in order to provide written amplification as to the change of decision as to the possible perpetrator of the injuries". Her submission was supported by a brief skeleton from the maternal Grandparents who expressed their devastation at what they had experienced, but then adopted the submissions of Miss Banks for the appellant mother.

27. Mr Rowley for the Local Authority filed a skeleton argument in which he submitted that the judgments of 15th and 20th February sufficiently explained the judge's considered conclusion and legitimately refused further amplification.

28. A brief skeleton from the father simply adopted Mr Rowley's submissions. Finally we had a helpful skeleton from Miss Sweeney for the Guardian which expressed the Guardian's concern at the difficulties and delays created by the judge's radical shift. She too submitted that the case should be remitted to the judge for amplification and clarification.

29. At the outset of the appeal the court suggested to Miss Banks that she should properly submit that once the judge had delivered her judgment of 15th December, which was duly recorded in a perfected order, she was functus officio and could not deliver a second judgment advancing a radically different conclusion. The court seal on the order of 15th December is only partially legible and bears no date. When we asked for the date on which the court sealed the order no-one in court could answer the question. We accordingly proceeded on the common assumption that the order had been sealed prior to 15th February 2012. However, we required investigation over the lunch adjournment.

30. At 2pm a further extraordinary story emerged. Manchester Civil Justice Centre does not keep a record of the date that orders are sealed. The order of 15th December was drafted by the Local Authority's representative and circulated to other parties for approval. On the 6th January it was emailed to the judge for her approval. That email received no response.

31. The hearings on the 23rd January, 20th February and 23rd February all provided the obvious opportunity for the Local Authority, and other parties, to ask the judge either to approve or amend the draft submitted for her approval. However, it was not until the 24th February that the Local Authority noticed what was lacking and re-submitted the draft to the court. Seemingly the draft received the court's stamp on that same day.

32. This revelation altered the legal path. Had the judge a license to revise or reconsider on 15th February since the previously announced conclusion had never been made the subject of a perfected order: see for instance the judgment of Arden LJ in Re T (contact: alienation: permission to appeal) [2003] 1FLR 531 at paragraph 50 where he said:-

"It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order"

33. Mr Rowley so urged and further asserted that in family proceedings where there is a direction for spilt trial the final order is the order which settles the child's future. Accordingly the judge has a special licence to revise any finding as to the past expressed in the preliminary fact finding judgment. In support of that proposition he relies on the judgment of Munby LJ in Re A and L (Appeal: Fact Finding) [2011] EWCA Civ 1205 at paragraph 21 where he says:-

"21. But there is a wider and more fundamental point. As Baroness Hale of Richmond explained in In re B (children) (Care proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35. [2009] 1 AC 11, para [76], a split hearing "is merely part of the whole process of trying the case. It is not a separate exercise. And once it is done the case is part heard. The trial should not resume before a different judge".

Consistently with this, the findings at a fact finding hearing are not set out 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 Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, paras [14], [24]. Thus in such a case the judge is entitled at any time, including at the final hearing, to reconsider his earlier findings. Arden LJ's statement in Re T needs to be read with this point in mind. The relevant order for this purpose is the final order made at the end of the care proceedings."

34. At the conclusion of the argument we met conflicting pressures. On the one hand it was particularly important to deliver our conclusion given that there was an Issue Resolution Hearing fixed in the County Court for the following day. Finality for this child was becoming increasingly imperative. On the other hand the points upon which our conclusion depends were not anticipated by any of the counsel instructed and were not surveyed in the skeleton arguments. The hearing before us also elicited new facts with a substantial bearing on the points of law.

35. According we permitted, indeed encouraged, further written submissions not only from counsel who appeared but also from counsel who had responsibly saved expense by adopting the written skeletons of other counsel.

36. Self evidently the party most adversely affected by the preliminary view that the judge could not at some date between the 23rd January and 15th February reverse a decision expressed in the judgment given on 15th December was the father. Accordingly we particularly emphasised the need for Miss Kilvington, counsel for the father, to be informed of the developments in our court so that she should have a proper opportunity to file a further skeleton argument to address the law on the points in issue and to cite any relevant authority that emerged from her research.

37. I will defer any consideration of the fortuitous fact that the order of the 15th December was not perfected until 24th February. I will first consider Mr Rowley's basic submission in reliance on the two authorities cited above.

38. There can be no doubt of the sound general rule that a judge may reconsider and revise a draft judgment which has not yet been expressed in a perfected order of the court. The procedure for handing down judgments is designed to allow counsel for the parties to suggest or urge corrections or revisions to the judge's preliminary conclusions. But that is not this case.

39. Equally, the decision in English v Emery Rhinebold a Strict Limited [2002] EWCA Civ 605 established an important practice, extended to family proceedings by this court in Re T (cited above).

40. If a judgment seems to be incomplete or deficient, counsel has the obligation to invite the judge to expand or supplement rather than to rely on the deficiency as grounds for an application for permission to appeal. But that practice allows the judge only to expand findings or reasons in further support of his stated conclusions. It certainly does not permit a judge to reverse a previously stated conclusion.

41. As to the judgment of Munby J in A and L (cited above), I am in complete agreement with the views he expressed. However, it should not be forgotten that the essential function of a preliminary issue trial is to establish past events and to distil the conflicting accounts of parents and carers into incontrovertible facts. That process is necessary to enable professionals and experts to assess future risks and benefits on the foundation of those established facts.

42. The purpose of the second hearing is to resolve which of the rival plans for the future will be most beneficial, or least harmful, to the child.

43. Although the second hearing should be before the judge who conducted the first that does not always happen and in rare instances cannot happen. The case of Re M and MC [2003] 1 FLR 461 illustrates the importance of the foundations laid by the judgment that concludes the preliminary issue trial but without precluding the judge from taking account of developments in the interim between the two trials.

44. However, in my judgement, interim developments must be substantial, if not fundamental, and accordingly cases in which the judge conducting the second trial will admit evidence of interim developments will be rare.

45. It is important that we should not diminish the general importance of finality that judgment brings to human disputes. Judges appreciate that their findings as to disputed past fact and as to credibility are enduring and they are very conscious of the consequential burden and responsibility. The responsibility is magnified by the knowledge that once they have pronounced there is no opportunity for reconsideration or review.

46. This principle is of particular importance in child protection litigation. This case well illustrates the havoc, the damage to the child and the family and the difficulties for the social work team caused by the judge's departure from principal.

47. Reverting to the question identified in paragraph 37 above, I do not draw from paragraph 21 of Munby J's judgment, the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licenses a judge generally to amend his judgment as to past fact at any time before he has pronounced his judgment as to the future.

48. In my opinion the purpose and objective of each of the preliminary hearings as to past events, and the welfare hearing to settle the future, are fundamentally different. The purpose and objective of the first trial would be jeopardised or lost if the judge at the second were free to re-write the history of past events.

49. The opportunity given to the parties to file further submissions by 16.00 hrs on the Wednesday following the hearing was taken by the appellant, the Local Authority, the father and the Guardian.

50. Miss Banks for the appellant adopted the approach suggested by the court at the oral hearing with enthusiasm.

51. Mr Rowley, for the Local Authority, relied in part on the freedom to revise prior to perfection and also urged that a judge is bound by judicial oath to abandon a previously stated conclusion in which all confidence has been lost. He adds a number of powerful practical and pragmatic considerations. How can the judge conduct the welfare trial on a fundamental finding which is now perceived to be misjudged? The judge would breach the judicial oath were she to decide the child's future on the found fact that the father alone was the abuser. How are the Local Authority to prepare a care plan on that premise, a premise contrary to their submissions filed in December, a premise that they only adopted because the judge so found but which the judge subsequently unfound?

52. Miss Kilvington, in a well written skeleton, urges the legitimacy of the judge's conduct. She emphasises that her request for expansion of the judgment was properly done to ensure that she did not seek permission to appeal prematurely. Had the judge conventionally expanded her reasoning on receipt, Miss Skillington would have considered applying for permission to appeal. If this court restores the judgment of the 15th December then she will exercise that right.

53. The Guardian in her helpful skeleton emphasises and enlarges the chronology. For instance further research has established that the representative of the police did attend the hearing on the 23rd January and obtained a release of the judgment: also perfection of the order of 15th December was achieved on 28th February and not 24th.

54. Furthermore, these skeletons reveal a tension between two lines of authority: the first establishing the principle that a judge is free to change the judgment until the resulting order is sealed (see Stewart v Engel [2000] 3 All ER 518), the second, that when an oral judgment is given, the winner is entitled to rely on its validity, only to be upset in most exceptional circumstances (in Re Barrell Enterprises [1973] 1WLR 19).

55. I do not believe it necessary to consider these and other relevant authorities cited further, given the extraordinary facts of this case. I need only emphasise the clarity of conclusion announced on 15th December, the general assumption that the resulting order had been perfected in mid January, the general implementation of the judge's conclusion, her adherence to that conclusion at the hearing on the 23rd January, the absence of any change of circumstance and the general slackness that left the December order unsealed until 28th February.

56. Despite all the difficulties that were laid out in the supplemental skeletons I unhesitatingly conclude that the judge was bound to adhere to the conclusion of her December judgment and that her obligation to particularise it further did not permit her to enter a fresh and contrary conclusion. The result was not, as is submitted, merely to add back the mother: it 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. The effect of the judge's shift is to remove the simplicity of a sole parent perpetrator. However the mother was not a placement option. That remains between father and maternal grandparents. Whether the father is viewed as a possible or a proven perpetrator there is still a risk to be assessed.

Lord Justice Rimer:
57. Her Honour Judge Penna notified the parties that she would deliver her reserved judgment on the fact finding hearing on 15 December 2011. On that day she delivered a short oral judgment giving her reasons for finding that the injuries to the child were caused by the father. Her findings excluded the mother as an actual or possible perpetrator of the injuries. The judge concluded her judgment by saying:

'Those, in what I know are very broad terms, are the findings of the court. If any party would be assisted by the provision of detail in relation to specific points, I would by all means address those points. However, I was concerned for you to know my view in broad terms at the earliest possible date.'

58. I do not, with respect, regard that invitation as having been appropriate. The way that civil courts operate is that the parties identify to the judge the matters in dispute between them and present their respective cases. When that exercise is over, it is the judge's task to deliver a reasoned judgment giving his decision on the matters in dispute. It is for the judge to satisfy himself when delivering judgment that he is giving sufficient reasons for his decision. If he is so satisfied, then (subject to the English v. Emery Reimbold point referred to below) there will be no need or basis for any later supplement to his judgment. If he is not so satisfied, then he is not ready to deliver his judgment and should defer its delivery until he is. Contrary to the sense of the judge's invitation to the parties, the content of a judgment should not be dictated by the requests of the parties. It may of course be that, once the judge has delivered judgment, a disappointed party will wish to appeal against his order on the ground that the judgment is insufficiently reasoned, and the judgment of this court in English v. Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, at [25], explains the circumstances in which the judge may in such a case consider it appropriate, or else be invited, to provide additional reasons. But circumstances such as that do not detract from the general thrust of what I have said.

59. Once the judge had delivered her judgment of 15 December 2011, an order giving effect to it should have been drawn up and sealed. That should have happened promptly but did not. The copy of the order before us bears a semi-illegible court seal but does not disclose when it was affixed. This court's inquiries yielded the information that the order was in fact sealed on 28 February 2012. The order was in these terms:

'Upon hearing the advocates for the parties
Recording
1) Court provided a summary Judgement in respect of the Fact Finding Hearing where the father was seen [sic] to have caused the injuries to [the child]
2) Upon hearing the Greater Manchester Police's application for disclosure …

The Court Orders
1. A transcript of the Judgement [of 15 December 2011] be made available to the parties at public expense
2. The Independent Social Work Assessment of the maternal grandparents be filed and served by 3rd January 2012
3. The Solicitor for the Children convene a Professionals meeting the week after the 3rd January 2012
4. Directions Hearing to be listed for 23rd January 2012 [with details of time and place]
5. The following documents are to be disclosed to the Greater Manchester Police [and four reports and two statements are listed]. The Police are invited to attend the Directions hearing on the 23rd January 2012 to make a further application for disclosure of the Judgement and transcript in respect of the Fact Finding hearing
6. The Final Hearing has been provisionally booked for the week commencing the 20th February 2012.'

60. Those directions, all given on 15 December 2011 following the judge's judgment, were directed at the future conduct of the care proceedings in the light of the judge's findings. Thorpe LJ has referred to the consequential draft care plan for the child that the local authority prepared and to the making of further directions at the hearing that took place on 23 January 2012. The order of that date also referred to the distribution on 9 February 2012 of a 'perfected judgment'. That was a reference to the production by the judge of a fuller judgment for her decision of 15 December 2011, covering points raised by the father in his counsel's written submissions of 5 December 2011 with which her oral judgment of 15 December 2011 had not dealt.

61. The perfected judgment was produced on 15 February 2012. The judge opened it by saying:

'The parties have been waiting over an extended period for my judgment in this matter. I gave a preliminary indication of my view on 15th December. The parties asked for more detailed particulars and it follows that I have spent a considerable amount of time considering the evidence I heard, the documentation filed in the case, and the view which I initially gave.'

The judge then explained that she had reviewed her reasoning and changed her position. Her revised position, and finding, was that 'although one of the parents must have been the perpetrator of [the child's] injuries I am unable to identify with which parent that responsibility lies.'

62. That was a volte-face. Contrary to her chosen language, the judge had not on 15 December 2011 expressed a 'preliminary' indication of her then view, 'preliminary' being, I interpret, there used as synonym for 'provisional'. She had made a final determination that inculpated the father and exculpated the mother. She had made a consequential order that reflected that finding and had given directions consequential upon it for the further disposal of the care proceedings. The parties had then acted on the finding and the judge had given further directions in the proceedings. By her second judgment of 15 December 2012 the judge was, on one view (but see the reference below to A and L (Children) [2011] EWCA Civ 1205), impliedly purporting to recall her still unsealed order of 15 December 2011, or the material parts of it, and to make a different order.

63. There was then a further hearing on 20 February 2012, when the judge delivered another judgment clarifying what she had done. According to the unapproved draft of that judgment that was put before us, she said that 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. … I do not view [that change of direction] as incompatible with what I said the first time; it is simply [that] a reconsideration of the point I reached on the balance of probabilities led to my second expressed view.'

I do not fully understand what the judge was there saying. The position appears to be, more simply, that she had found the facts one way in December 2011 and, following further consideration, another way in February 2012.

64. On some unknown date, the court sealed the order that the judge made on 20 February 2012, one that obliquely reflected her revised fact finding decision. It provided, so far as material:

'It is recorded:
1. 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 15/2/12, compared with the conclusion indicated in the preliminary Judgment of 15/12/11.'

65. There was yet another hearing before the judge on 23 February 2012, with the order of that date recording her as granting the mother 'permission to appeal the Judgment of 15/2/12 & the addendum thereto delivered on 20/2/12'. Appeals do not, or do not ordinarily, lie against judgments, but only against orders, and Thorpe LJ has explained that we permitted the appellant mother to amend her appellant's notice to challenge the relevant part of the order of 20 February 2012.

66. The outcome of this unfortunate history is that this court is now faced with a decision as to the future course of the care proceedings. Whilst the question of a re-trial of the fact finding hearing has been considered – and, at least in theory, there might be something to be said for it – that course has not been pressed upon us, for reasons which I well understand. The issue ultimately argued before us was whether or not the judge was entitled to recall her judgment and order of 15 December 2011 and substitute for them her revised judgment and order of 15 and 20 February 2012 respectively. In short, which of the judge's two competing judgments should stand?

67. The principles are, I consider, clear. A judge has jurisdiction to recall the order made following his judgment at any time before the order is drawn up and sealed. Once, however, the order is sealed, the judge cannot recall it and becomes functus officio in relation to the issue the subject of the order. I respectfully agree with Thorpe LJ that the relevant order in the present context is in fact the (yet to be made) final order that settles the child's future, as explained by Munby LJ in In the matter of A and L (Children) [2011] EWCA Civ 1205, at [21]. The relevant order is not therefore that of 15 December 2011, although that was anyway only sealed after the judge's revised judgment of 15 February 2012. If, however, that order had been the relevant one, I consider that the revised judgment could fairly be regarded as impliedly directing its recall, with the consequence that its sealing in its original form could be regarded as a slip that could be corrected under CPR Part 40.12(1).

68. The fact that it is the final order that is the critical one does not, however, mean that the judge in care proceedings such as these has a general licence in the meantime to change his mind as to the fact finding decisions that he has earlier made. He will no doubt have a jurisdiction to revisit those findings. But in the ordinary course he will only have legitimate occasion to exercise it in the light of a material change of circumstances justifying it, in particular the emergence of new evidence. A judicial change of mind following the renewed consideration of a decision already made would not ordinarily be regarded as the type of circumstance in which it would be open to the judge to make fresh findings.

69. The present case is, however, one in which during the two-month period following her initial decision (at, therefore, a relatively early stage in the overall process, although on any basis later than was desirable) the judge did have such a change of mind, one that I infer was conceived by her fuller consideration of the evidence and submissions than she had been able to engage in before delivering her judgment of 15 December 2011. In my judgment, the judge undoubtedly had jurisdiction to revise her original findings. The question is whether it was proper for her to exercise it.

70. In that regard, this court in Stewart v. Engel and another [2000] 3 All ER 518 held, by a majority, that the existence of exceptional circumstances was a prerequisite for the exercise of the jurisdiction. I do not, however, find it easy to identify how, in any particular case in which such a question arises, the exceptionality or otherwise of the circumstances is to be measured. In Robinson v. Fernsby and Another [2003] EWCA Civ 1820, May LJ said, at [94], that the expression 'exceptional circumstances' was a 'relatively uninformative label' and I respectfully agree. In the same case, Peter Gibson LJ, provided guidance that I find rather more informative even though he too used the same phrase. He said, at [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. That was established by two decisions of this court: Millensted v. Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 and Pittalis v. Sherefettin [1986] QB 869. Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for a judge to have the courage to recall his order. If, as in Millensted and Pittalis, the judge realises that he has made an error, how can 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 correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required for the recalling of an order before it is sealed. The possible qualification to which I have referred is where the judgment handed down or delivered has reasonably been relied on by a party who has altered his position irretrievably in consequence. In such a case the interests of justice may require the judge not to resile from that judgment even if the order has not been sealed. But that is not this case, where it is not suggested that the claimant had altered her position as a result of the draft judgment.'

71. Those observations appear to me to provide a clear pointer to the conclusion that, in the present case, this court should support the judge's change of mind. She was thereby honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. There has undoubtedly been some reliance upon her earlier decision and I do not underestimate the devastating effect that her change of mind will have had on some of the parties involved. I doubt, however, that it would be safe to regard anyone as having irretrievably changed his position. The judge's findings following the fact finding hearing are directly relevant to the future care plans for the child. That consideration ought to be regarded as providing the key to the question before us. A court's determination of care proceedings such as these is amongst the most sensitive types of determination that a civil court is called upon to make: the circumstances of the case can, therefore, perhaps for that reason fairly be regarded as exceptional. I agree with Mr Rowley, for the local authority, that 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. The stance that the judge should be held to findings in which she does not believe is based on little more than an appeal to procedural discipline. To require the judge, or any other judge, to conduct the welfare proceedings on the basis of a false substratum of fact is to require the judge to shut his eyes to the realities and to embrace a fiction. That cannot be in the interests of the child. I would dismiss the appeal.

Sir Stephen Sedley
72. The history of these proceedings has been fully set out in the other two judgments. I can therefore go directly to the issue: did Judge Penna have power to substitute her second judgment for her first?

73. In my judgment she did not. I reach this view on both procedural and substantive grounds.

74. It seems to me 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; or that a final order in the case still remains to be made and sealed. Justice cannot depend on the functioning of an overworked and underfunded court office. Although the sealing of an order gives visible finality to a court's decision, it is the delivery of judgment which constitutes the decision. The drawing up of the consequent order is not unimportant (and before the days of mechanical recording and word processing was often critical), but it is not what gives finality to a judgment. Nor can "deeming" a perfected judgment to have been handed down on the day of its distribution (as was purportedly done here) somehow postpone its finality.

75. "Finality is a good thing," said Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60 IA 354, 361, "but justice is a better." For this reason the law has come to accept a number of situations as justifying a departure from finality in the interests of justice: for instance, where potentially decisive new evidence has come unexpectedly to hand.

76. In Robinson v Fernsby [2003] EWCA Civ 820 May LJ said:

"Once a judgment has been handed down or given, the court should hesitate long and hard before making a material alteration to it. There may very occasionally be circumstances in which a judge not only can but should make a material alteration in the interests of justice. This necessarily means that the court would only be persuaded to do so in 'exceptional circumstances', but that expression 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."

77. Re Barrell Enterprises [1973] 1 WLR 19 makes it clear that the perfection of the court's order is not the decisive moment for this purpose: even before that point, there has to be a compelling reason for reopening a judgment.

78. In the present case there was, in my respectful opinion, no such reason. I recognise and respect the judge's anxiety to reach a just decision as to which parent (there were no other possible culprits) had inflicted the eight week old's appalling injuries - bilateral fractures of the radius, ulna, femur and tibia, and four broken ribs. Although her first judgment was short, it was cogent, and it placed the blame on balance of probability upon the father. From this would follow proper arrangements for the child's care and upbringing.

79. Between 15 December 2011 and 15 February 2012, when she reversed her own decision, nothing had changed except the judge's mind. I do not mean this dismissively. There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge's mind - to justify reversal of a judgment.

80. Lord Justice Rimer has helpfully cited the concurring judgment of Peter Gibson LJ in Robinson v Fernsby (ante), which treats exceptionality as a consequence rather than a prerequisite of the power to alter a judgment; but, for the reasons I have given, his preference for using the interests of justice as a test is not different in effect, at least in a case like the present one, because it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice.

81. So here, the growth of doubt in the judge's mind did not mean that her first decision was wrong. No system of justice can promise to be infallible: only to be fair. Judge Penna had made up her mind and had delivered her December judgment accordingly. In my respectful view she had no power to revoke it. There was and is no unfairness in this: she had heard all parties and listened to their arguments. What was unfair was depriving the child of the arrangements consequently being made for her safety and welfare, and her mother of the exoneration which the judgment brought, without a sufficient reason.

82. While insistence on finality can in some situations create or compound injustice, in the ordinary way finality is itself a component of justice. The present case was in my view not one where finality had to yield to the interests of justice. Rather, if anything, the contrary.

83. I have considered with some anxiety whether this would equally be my conclusion if the judgments had gone in the reverse order: that is to say, if the judge in December had found herself unable to allocate blame but by February was satisfied that the offender was the father, or for that matter the mother. Would one not be straining to find a way of giving effect to the second judgment out of concern for the child? Perhaps; but the pressure would have to be resisted, because the principle would be as clear as, in my judgment, it is in the present situation.

84. In agreement with Lord Justice Thorpe, I would allow the appeal.