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Reviewing Findings of Fact in Care Proceedings

Jennifer Kotilaine, barrister, of 42 Bedford Row considers the President’s endorsement of the three-stage test in Re ZZ [2014] EWFC 9.

Jennifer Kotilaine, barrister, 42 Bedford Row

Recent CAFCASS data have shown that one in every three care applications concerns a mother who is a 'repeat client' of the family court.  Applications are made by local authorities who may rely, at least in part, on findings made in previous proceedings.  Despite recent guidance and case law ( Re S, Cambridgeshire County Council v PS & ors [2014] EWCA Civ 25, Re S (Children W & T) [2014] EWCA Civ 638) which discourage the use of fact finding hearings in public law proceedings except in a limited group of cases, earlier findings of fact will continue to be used in current and prospective care applications. 

Those against whom findings are made may occasionally seek therefore to re-open various facts that have been found—either in previous or in current proceedings. The doctrine of issue estoppel does not apply in proceedings related to children, and so findings made in previous hearings are not immune from being re-litigated in certain circumstances (per Hale J in Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117, 128). Where proceedings are ongoing, findings made are not final and are capable of being revisited when they cannot be sustained in the face of fresh evidence or further developments (per Lady Hale in Re L & B (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, paras 33-35).

There are limits, however, as to when reviews of earlier findings may occur. The recent case of Re ZZ & ors [2014] EWFC 9 provides helpful guidance from the President on when reviews of earlier findings should be permitted, how they should be investigated, and which burden is on which party.

In ZZ, the court was concerned with six children, ranging in ages from 17 to 4 at the time of appeal.  Proceedings began in July 2012.  A 10 day fact finding hearing was held in December 2012 when it found that the father of the youngest four children had assaulted the eldest two children of the mother as well as the mother herself.  However, after the findings were made, the two eldest children of the mother retracted their allegations about their stepfather. After an appeal, the first instance judge reviewed the earlier findings and found that the retractions made by the two eldest children were not credible.  She refused to vary her previous findings against their stepfather.  The father of the two eldest children then appealed.

Dismissing the appeal, Sir James Munby P upheld the first instance judge's approach to review and, after considering various authorities, endorsed (with some qualifications) the three stage approach for such reviews set out by Charles J in Birmingham v H & Ors [2005] EWHC 2885 which is referred to by Sir James Munby P as 'Birmingham (No 1)'.

The three stage approach

In Birmingham (No 1), Charles J considered the approach that should be taken by the Family Court to findings made in earlier proceedings that are directly relevant to present proceedings. At para 55, he stated:

'In my view the approach has three stages.  Firstly, the court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding. [ . . .] If it does the second and third stages relate to its approach to that exercise.  The second stage relates to, and determines, the extent of the investigations and evidence concerning the review.  The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant test to the circumstances then found to exist.'

Sir James Munby P agrees with Charles J's three stage approach in all circumstances. He states at para 32: '[T]he same three stage approach applies [ . . .] whether in the same or different proceedings, and whether in relation to the same or different children.'  He then goes on to consider Charles J's three stage approach in some detail, making observations on each stage that will be helpful to practitioners.

The first stage: when should a review be permitted?

In relation to the first stage, Sir James Munby P adopts the factors set out by Hale J (as she then was) in Re B at pp 128-129 that the court must keep in mind when considering whether or not to grant permission for any finding of fact to be reviewed and re-tried, namely:

Summing up these Re B factors, Sir James Munby P says the following, at para 33: 

'[O]ne does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting.  Mere speculation and hope are not enough.' 

The second stage: investigations and evidence concerning a review

In setting out his three stage approach in Birmingham (No 1), Charles J was considering a case where a review had already been permitted. He was already therefore at the second stage where, as he said at para 58, the court must use its discretion 'to regulate the evidence that can be called and the extent of any challenge to, and revising of, the earlier finding and thus the nature and extent of the inquiry relating to an earlier finding'. In the exercise of its discretion at the second stage, there is no departure from the court's general case management powers.

Given that each review is fact specific, it is not possible to say that a certain kind of evidence or investigation is to be preferred to any other.  Sir James Munby P states at para 34:

'I doubt that one can be sensibly be prescriptive. Much will turn on the forensic context and the circumstances of the particular case.'

Sir James Munby P agrees with the observations of McFarlane J (as he then was) in Birmingham City Council v H & Ors [2006] EWHC 3062, referred to by Sir James Munby P as 'Birmingham (No 2)'. At para 55 in Birmingham (No 2), McFarlane J observed that

'[O]nce [ . . .] the court is involved in evaluating the evidence itself, it would be wrong to afford some sort of priority to the evidence given and finding made at the earlier hearing that are to be considered within the review. Indeed it would be difficult to do so in any formal way.' 

There is no presumption in favour of a previous finding.

However, Sir James Munby P doubts McFarlane J's approach in Birmingham (No 2) at para 42 that, although there is no presumption, a finding of fact is strong evidence of its own truth and 'should be followed in the absence of compelling evidence against it' and at para 55 that 'any fresh evidence, to get anywhere in achieving the aim of those who call it, must be sufficiently robust to challenge this hitherto 'strong' material.' Instead, Sir James Munby P says at para 33 that 'there must be solid grounds for a challenge.  But for my own part I would be disinclined to set the test any higher.'

The third stage: the review itself

In the face of a previous finding, the party who wishes to challenge it is under an evidential burden to adduce evidence that will displace it. This evidential burden on the challenging party does not, however, interfere with the burden of proof.  The burden of proof remains on the local authority to maintain the earlier finding during the review.  Sir James Munby P agrees with McFarlane J's statement at para 45 in Birmingham (No 2):

'The parents have [  . . .] to make the running to present evidence that challenges the original finding.  The evidential burden is not more than that; a description of its effect does not go to the respective weight or priority that may be afforded to the previous finding.'

Charles J in Birmingham (No 1) stated at para 62 that a 'high test' must be passed before previous findings are either set aside or not treated as binding, and McFarlane J in Birmingham (No 2) clarified that this test requires 'compelling evidence' (para 42(iv)) or 'sufficiently robust' (para 55) evidence to the contrary. However Sir James Munby P takes McFarlane J's clarification of Charles J's 'high test' as a rejection of it. He doubts that Charles J's language is appropriate in the circumstances:  ' [The] phrase 'high test' is best avoided. [. . . T]o elevate them to a test—a legal principle—is unwarranted, unnecessary and potentially misleading.' (para 35)  In rejecting the idea of a 'high test', Sir James Munby P adopts McFarlane J's reasoning at para 55 of Birmingham (No 2): 'once the hearing in a review process [ . . .] has commenced, the duty of the court is to look at the matter afresh.' And as Sir James Munby P himself says at para 35: 'The judge has to consider the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court.'


Sir James Munby P does not explain what kind of 'earlier material' must be considered by the judge before making a decision:  Does he mean 'earlier evidence' or does he mean 'earlier finding'?  In ongoing proceedings with the same judge this will certainly be earlier evidence.  In different proceedings, by contrast, a new judge cannot simply add the new evidence to the old because she did not hear the old evidence, and at best will only have a summary of it available to her.  The earlier finding must then be the 'earlier material' to which Sir James Munby P refers.  In such a case the 'totality of material before the court' is (a) an earlier finding and (b) some new evidence.

The problem that remains unresolved in this decision by Sir James Munby P is that of how a judge is supposed to relate (a) to (b) in arriving at a new finding. Should the judge in the new proceedings hear afresh the evidence that led to the earlier finding, so that she has the 'totality of the material' before her? That is the same as adjudicating de novo. Or should she treat the old finding as worth something in itself – as carrying some evidential weight – in competition with the new evidence? That is what Charles J and McFarlane J are trying to suggest with their talk of 'high tests' and 'compelling evidence'. Sir James Munby P disapproves of their suggested ways of weighing the old finding in the balance of evidence. But he does not make clear what exactly we are to replace them with. If the matter is simply to be adjudicated de novo, with a rehearing of all the evidence, this should be spelled out.

When he says, at para 32 that he does not think 'that different approaches are called for in different forensic contexts', Sir James Munby P seems to be referring to the three-stage approach. He rightly suggests that this is versatile enough to apply to both ongoing proceedings in which a judge revisits his own findings of fact, and to new proceedings in which a judge revisits findings of fact made in previous proceedings where he did not hear the evidence. However it is not clear that the 'proper approach' to third stage, which he discusses in para 35, can be the same in the two classes of case just mentioned. In the first class of case there exists a 'totality of material' in the sense of an accumulation of evidence heard across two or more different hearings. In the second class of case there exists no such totality. The earlier evidence is not directly available.

At the end of his judgment, Sir James Munby P observes that this case 'stands as an object lesson in the perils of the split hearing' in care cases (para 51).  However it is not clear that this is the main lesson of the case or the main peril it exposes. Without the restrictions of res judicata and issue estoppel, facts found in earlier cases can be theoretically reviewed and, indeed, re-reviewed.  Charles J in Birmingham (No 1) himself mooted this possibility, saying that if the court concludes that it 'should not rely on the previous finding [ . . .] the question would arise whether a party sought to re-prove the relevant allegation'(para 60). This is surely the principal peril to which we are exposed in the area of Sir James Munby P's judgment, and it is not entirely clear how it is now to be averted. True, there is a hurdle at stage one of the three-stage approach.  But what exactly is the 'proper approach' to stage three?

Although they have now recently fallen out of fashion, fact-finding hearings will continue to be used where there is a single factual issue to be decided or where there are complex medical issues which fall to the court to determine (per Ryder LJ Re S para 29).  And, at least for the foreseeable future, facts found in earlier proceedings will also continue to be used as a basis on which local authorities construct their threshold documents when embarking upon care proceedings. However, in the author's submission, the decision in Re ZZ does not make sufficiently clear how the same approach to the reopening of factual disputes can be applied alike in these two classes of cases.