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Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447

Court of Appeal judgment setting out the procedure by which findings of fact may be challenged on the basis of further evidence. It will generally be more appropriate for the significance of the further evidence to be considered by the trial court rather than by way of appeal.

HHJ Furness QC made findings that the mother had caused cigarette burns to N, then aged 10 months, which were either inflicted deliberately or caused by seriously culpable negligence.  Final care orders were made in August 2018.  Police consulted Mr Rayner, a forensic burns consultant and forensic plastic surgeon.  In his report of October 2018, he opined that an account he understood the mother to have given represented a plausible accidental explanation.  Consequently, there were no criminal charges.  Upon receipt of the report, mother sought to challenge the findings. Mother's advisers believed an appeal out of time to be the only route open to mother.  Due to difficulties with legal aid, her appellant's notice was filed in May 2019. 


Jackson LJ gives the lead judgment.  He sets out in detail the procedure by which findings of fact may be challenged on the basis of further evidence, with reference to the case law.

There is no doubt that a party can seek to pursue an appeal accompanied by an application for permission to file further evidence [CPR 51.21(2)]. Ladd v Marshall [1954] 1 WLR 1489 remains persuasive authority.  In family proceedings, a decision to admit further evidence on appeal will be directed by the Ladd v Marshall analysis, but with a view to all relevant matters ultimately being considered. 

Applications to the first instance court are discussed in detail [para 28-55]. There is no strict rule of issue estoppel.  However, a decision to allow past findings to be relitigated must be a reasoned one.  There is a need for principled flexibility in cases concerning children. The court will "above all" be influenced by whether there is any reason to think that a rehearing will result in a different finding [Re W (Care Proceedings) [2010] 1 FLR 1176]. Where the challenge arises within the course of continuing proceedings, the trial court can revisit its finding of fact if further evidence warrants it.  The ability to challenge a finding depends on the finding being one that has actual or potential legal significance.

The instant case concerned a challenge to findings where proceedings had concluded and there were no other proceedings. Jackson LJ differs from the provisional view expressed by Macur LJ in Re G [2014] EWCA Civ 1365 that, in light of the judgment in Re L and B (Children) [2013] UKSC 8, a challenge to findings after sealed order must be in the appellate court arena. 

Jackson LJ observes that Re L and B concerned circumstances where a judge may or may not change his or her mind, not the situation where a court is asked to take account of further evidence. Fundamentally, the statutory landscape has changed with the establishment of the family court in 2014.  Jackson LJ considers that s.31F(6) MFPA 1984 gives the family court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter [para 40-45].

Though there may be circumstances where an appeal would be more appropriate, in general an application to the trial court is likely to be a more suitable course. The trial court is likely to be in a better position to assess the true significance of further evidence.  An application is likely to be dealt with more quickly and at less expense.  Part 18 FPR 2010 provides a mechanism for such applications. 

In exercising its jurisdiction to review findings of fact, the family court will give particular weight to the importance of getting it right for the sake of the child.  The approach to applications for reopening is well established and Jackson LJ helpfully sets out the three stages [para 48-51].  

The Family Division does not benefit from the provisions of s.31F. While the lacuna may be filled, it would be preferable if the procedure was equivalent to the family court.  The scope of s.31F(6) in the context of financial remedy proceedings was considered by the Supreme Court in Gohil [2015] UKSC 61 and Sharland [2015] UKSC 60.  In Gohil, the Supreme Court recommended that a rule be made: FPR 9.9A was introduced in October 2016.   The Rules Committee may wish to consider an equivalent rule encompassing applications in children cases. 

The Ladd v Marshall criterial were satisfied and the report was admitted on the appeal.  The matter was to be listed for directions before the trial judge to consider whether and, if so, how his findings of fact should be reopened.  The CA considered that the further evidence might have an important influence on the outcome, at least in relation to whether N had been burned deliberately, but the extent of its significance was a matter for the trial judge.  Appeal dismissed, without expressing a view on its merits, as being a less appropriate means of resolving the matter. 

Summary by Victoria Roberts, barrister, Coram Chambers. 

You can read the full judgment of Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 on BAILII