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F-K (A Child) Re [2005] EWCA Civ 155

A judge has a discretion to re-open findings of fact made by a previous tribunal in the same proceedings, but must exercise the utmost care in coming to a different conclusion.

F-K (A Child), Re [2005] EWCA Civ 155

Court of Appeal: Potter and Wall LJJ (24 February 2005)

Summary
A judge has a discretion to re-open findings of fact made by a previous tribunal in the same proceedings, but must exercise the utmost care in coming to a different conclusion.

Background
This was an appeal relating to an intractable contact dispute which had, in procedural terms, gone badly wrong. As the judge had commented, the 'battle' over a 10-year-old girl had given rise to more than 20 hearings over a period of eight years: the parents' position was no nearer to resolution now than at the outset; and, from the case management perspective, there had been a marked lack of judicial continuity.

The mother's appeal, against the judge's order for the girl to have contact with her father, raised two principal issues: '(1) in what circumstances is it (a) permissible and (b) appropriate for a judge to re-open findings of fact made by a previous tribunal in the same proceedings? and (2) In what circumstances is it (a) permissible and (b) appropriate for a judge to reject unanimous expert evidence?'. The court reviewed at length the facts and procedural history of the case, and considered in turn each of the six grounds of appeal.

Judgment
Held, allowing the appeal, that the judge, while he had been entitled to exercise his discretion to embark on a re-hearing of the allegations by the mother which were the subject of findings in the original case, was obliged to exercise the utmost care in coming to a different conclusion. The court considered it axiomatic that, if a judge was going to reject an expert's evidence on the basis that the expert's opinion was predicated on inaccurate information, the findings of fact which the judge made must themselves be sound: in this case, they were not and it followed that the judge's rejection of the expert's evidence was likewise unsound.

The court determined that it could not itself decide the question of contact because, in deciding the way forward, a number of considerations had to be taken into account, some at least of which would require further oral evidence. The court order directed that the case should be heard in the Family Division, it should be reserved to Hedley J, and it should not, under any circumstances, be released to a circuit judge.

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