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RL v Nottinghamshire CC & Anor (Rev1) [2022] EWFC 13

This application came before Mostyn J. The mother (RL) sought a rehearing of a fact-finding that took place 5 ½ years ago on 13-17 June 2016 in relation to her then 6 month old daughter, C [1-2]. The Recorder had found on the balance of probabilities that a bruise to C’s right cheek, left cheek, and a fracture to her 7th posterior left rib were inflicted by either her mother or stepfather (DS) [2].

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The application

The application for a rehearing asserted the mother's belief that the fracture was caused during a skeletal survey from 11 January 2016 . The application did not mention the possibility of the fracture being a consequence of osteogenesis imperfecta (OI) and was silent on the bruises [4]. It was only in the mother's position statement dated 6 October 2021 that OI was first mentioned. Mother's counsel referred to a letter sent on 27 November 2018 to the maternal grandmother (C's special guardian) from the divisional director at Nottingham University Hospitals which confirmed that no OI tests were undertaken in 2016 as there were no clinical signs warranting them [5]. The possibility that C suffered from OI was the main ground relied upon by mother in this application [6].

Background

A chronology of events is as follows:

• C was born on 6 December 2015 without complications [7].

• Following concerns around an eye infection, C was taken to her GP on a couple of occasions before being admitted to hospital for an operation to remove a cyst from her eye on 8 January 2016 [8-10].

• The following day, a nurse noticed a bruise on C's left cheek. When questioned, the mother and DS said it had been there since C's admission [11].

• An additional bruise to the right cheek was identified at a child protection medical examination the next day [12].

• On 11 January, a skeletal survey further revealed a healing fractured collar bone which appeared to have occurred at, or soon after, C's birth [13].

• C was discharged on 12 January subject to the agreement she would not be left alone with either her mother, DS, or her maternal grandmother [14].

• On 26 January 2016, a chest X-ray on C revealed a healing fracture of the posterior left 7th rib [15].

On 1 February 2016, Nottinghamshire CC (the LA) instituted care proceedings, seeking findings that the following non-accidental injuries had been caused to C by the mother, DS, and the maternal grandmother:

(i) a bruise to the right cheek 0.5cm in diameter, with horizonal skin abrasion overlying it;

(ii) a bruise to the left cheek 1.5cm in diameter;

(iii) a fracture to the 7th (neck of) posterior left rib inflicted between 31 December 2015 and 11 January 2016; and

(iv) a fracture to the right clavicle on an unknown date nearer to birth.

The pleaded grounds also alleged failure to protect due to failure to report the cause of, or any concerns about, the injuries [17].

At the fact-finding hearing, the Recorder found that either the mother or DS had non-accidentally caused injuries (i)-(iii) [18]. No findings were made in relation to (iv) or the failure to protect. No findings were made against the maternal grandmother [19]. At an IRH on 26 June 2016, a SGO was made in favour of the maternal grandmother, effectively concluding the care proceedings, and that remains in force [21-22].

On 10 August 2021, the mother made the re-hearing application [23] and directions were given by HHJ Reece to prepare for this hearing [24].

The mother then made an application on 21 December 2021 for the instruction as a SJE of a consultant paediatrician to consider the bundles prepared for the fact-finding hearing and the current proceedings and to provide a report addressing various factors as listed at paragraph 25 of the judgment [25].

Legal principles

Mostyn J said how, under the general law, the mother's application would face being barred by issue estoppel, a sub-set of the doctrine res judicata. He noted how the doctrine is a rule of substantive law and not merely a procedural rule, a distinction which he deemed to be of some importance as later in his judgment he referred to a number of family cases which incorrectly assume the doctrine is merely a rule of procedure [27]. Mostyn J expressed how the essential features of issue estoppel are that the issue is the same in the second proceedings, and the parties are identical. If that is the case, then, subject to limited exceptions, the applicant is barred from relitigating the issue [28].

During his analysis of various cases, Mostyn J drew on Jackson LJ's conclusion from Re E (Children: Reopening Findings of Fact) 2019 EWCA Civ 1447, which was that a challenge at first instance was permissible, albeit that it should be subject to a form of permission filter. This would be the first of three stages, where the court considers whether it will permit any reconsideration of the earlier finding [40]. The test for permission was set out as follows:

"…whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial there must be solid grounds for believing that the earlier findings require revisiting."

Jackson LJ then elaborated this test in Re CTD (a Child: Rehearing) [2020] EWCA Civ 1316, saying that:

"… at the first stage the applicant must show that there are solid grounds for believing that a rehearing will result in a different finding. Mere speculation and hope are not enough."

It was Mostyn J's opinion that the above test, when correctly understood, is not materially different to that obtaining under general law. He said how under general law, notwithstanding a bar of issue estoppel, a party can exceptionally challenge an anterior judgment in fresh proceedings at first instance in certain clearly defined circumstances, these being [41]:

(i) on the grounds that the anterior judgment was fraudulently obtained; and

(ii) on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision [42].

It therefore seemed to Mostyn J that Jackson LJ's test of "there must be solid grounds for believing that the earlier findings require revisiting" ought to be interpreted comfortably with these exceptions if a divergence from the general law is to be averted. This would mean that "solid grounds" would normally only be capable of being shown in special circumstances where new evidence had emerged entirely changing the aspect of the case and which could not with reasonable diligence have been ascertained before [43].

Mostyn J said he could not see any reason why the general substantive law of res judicata should not apply to children's cases [45]. He accepted that Jackson LJ's test was binding on him, completely agreeing there should be a stage one form permission filter and that on a rehearing application mere hope and speculation will never be enough to gain permission. He said he was merely suggesting an interpretative reconciliation between the solid grounds test and general law such that solid grounds will normally only be demonstrated where either the fraud or special circumstances exception is satisfied [49].

This case

Applying the reasoning above, Mostyn J found that the application before him, as originally pleaded, did not come anywhere near meeting the standard of "solid grounds for believing that the original decision required revisiting". As originally formulated, the only ground advanced was the mother's belief that the fracture was caused by an incorrectly performed skeletal survey, but this aspect had been the subject of a specific finding by the Recorder [50].

With regards to the bruising, Mostyn J mentioned how nothing was said about the bruises in the application as originally pleaded, the first time the bruises ground was mentioned being in the position statement for the hearing on 6 October 2021 [55]. He summarised the bruises ground at paragraph 56. Mostyn J stated that he was not satisfied that there were solid grounds for believing that the earlier findings in relation to the bruises required revisiting, seeing the submissions made as no more than mere hope and speculation [59]. He concluded that the stage one leave test failed in relation to the bruises, regardless of whether the general law test of special circumstances or the more liberal interpretation "solid grounds" was applied [60].

Turning then to the rib fracture, the mother's grounds are summarised at paragraph 61 of the judgment, but Mostyn J stated that counsel for the LA "convincingly rebutted" those grounds in his "extremely well written skeleton", then going on to highlight the relevant points [62]. Counsel for the LA submitted that there was no fresh evidence supplying the necessary solid grounds for believing the finding should be revisited, and that no additional facts had emerged which entirely changed that aspect of the case and which could not, with reasonable diligence, have been ascertained before [63]. Mostyn J ultimately found that the Recorder's primary finding that the rib fracture was not caused at the skeletal survey was unassailable [64].

It was further raised by Mostyn J that there is no care order in respect of C. Her grandmother could have arranged for tests to determine whether C had OI and this was not done. Rather, the mother applied for a paediatrician to undertake a comprehensive examination on C and provide his opinion as to the cause of the relevant injuries and, inferentially, whether that cause was OI. This method of simply hoping something would turn up cannot fit with either the general law or even a most liberal interpretation of Jackson LJ's solid grounds test [65].

Mostyn J also noted that an additional factor in determining whether the case should pass through the stage one filter is the objective of the applicant [66]. While Mostyn J appreciated that the mother may want to expunge the stigma of the adverse finding from a moral viewpoint, this would not be a good reason to undo the finality of these long closed proceedings [66].

The Judge was not satisfied that there were solid grounds for believing that the earlier findings regarding the rib fracture required revisiting, finding that the submissions made in that regard were, again, no more than mere hope and speculation [69]. Once more, Mostyn J concluded that the stage one leave test was failed, regardless of whether the general law test of special circumstances or a more liberal interpretation of "solid grounds" was applied [70].

For those reasons, the mother's application was dismissed [71].

Case summary by Diana Panizzon-Pineda, Pupil, St John's Chambers

For full case, please see BAILII