Public Law
February 2022

An application for a rehearing before Mr Justice Mostyn. Counsel from St Mary’s Chambers, Chris Wells, appeared on behalf of the Second Respondent. The applicant mother sought a rehearing of the fact-finding heard on 13-17 June 2016 in relation to her daughter C, when C was only 6 months old. The Recorder found on the balance of probabilities that a bruise to her right cheek, a bruise to her left check and a fracture to the 7th posterior left rib were inflicted non-accidentally by the mother or by the child’s stepfather.

The application for a rehearing asserted the mother’s belief that the fracture was caused during the skeletal survey which took place on 11 January 2016. The application was silent about the possibility of the fracture being a consequence of osteogenesis imperfecta ("OI") and said nothing at all about the bruises. OI was mentioned for the first time in a position statement of the mother's counsel dated 6 October 2021.The possibility that C suffered from OI became the main ground relied on by the mother although such ground had never been formally incorporated into the application by an amendment. Mostyn J treated the application as having been amended to incorporate it. Mostyn J added that in any future case an application of this nature should be formally amended to include any later ground that is relied on.

Background: C was born on 6 December 2015 without complications. On 31 December 2015, the mother and stepfather took the child to see the GP, Dr JT, the fourth intervener, at his surgery because of what appeared to be an eye infection. Dr JT examined the child, prescribed some eye drops, and told the mother and stepfather to return if the child did not improve. On 4 January 2016, the mother and stepfather took the child back to the Dr JT's surgery because her eye appeared have worsened. Another GP in the surgery arranged for the child to be admitted to hospital for investigation of the eye infection.

At the hospital on 8 January 2016, an operation was carried out to remove a cyst from the child's left eye. On 9 January 2016, the mother and stepfather were preparing to take the child home when a nurse noticed a bruise on the child's left cheek. On 10 January 2016, Dr DW carried out a child protection medical examination of the child. He identified a bruise on the right cheek and a further bruise on the left cheek.

A skeletal survey was carried out on the morning of 11 January 2016. The survey revealed a healing fractured collar bone, which appeared to have occurred at, or soon after, the child's birth. A further chest X-ray was performed on the child on 26 January 2016. This revealed a healing fracture of the posterior left 7th rib.

On 1 February 2016, Nottinghamshire CC ("the LA") initiated care proceedings in respect of the child. The fact-finding hearing took place over four days before the Recorder from 13 June 2016 to 17 June 2017. The Recorder handed down a written judgment on 17 June 2016. The Recorder found on the balance of probabilities that a bruise to her right cheek, a bruise to her left check and a fracture to the 7th posterior left rib were inflicted non-accidentally by the mother or by the child’s stepfather.

Neither the mother nor stepfather has ever made an application for permission to appeal the Recorder's findings. On 26 June 2016, an IRH took place before Her Honour Judge Clark. At that hearing, a special guardianship order was made in respect of the child in favour of the maternal grandmother. On 10 August 2021, the mother made the re-hearing application.

Legal Principles: Mostyn J highlighted that under the general law the mother's application would face being barred by issue estoppel, a sub-set of the doctrine of res judicata. The doctrine is a rule of substantive law, and not merely a procedural rule: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46. In Mostyn J’s opinion, this distinction is of some importance as a number of the family cases to which he referred to “incorrectly assume that the doctrine is merely a rule of procedure” [27].

Mostyn J referred to Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117 at 127, Hale J held that the strict doctrine of issue estoppel can rarely, if ever, apply in children's cases [30]. Hale J held that: "…the courts' inquisitorial function means that the strict doctrine of issue estoppel can rarely, if ever, apply in children's cases …"

Mostyn J’s opinion was that the inquisitorial nature of a proceeding is not a good reason to disapply this rule of fundamental importance [35].

In Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 the Court of Appeal was principally concerned with the procedural question of how in continuing proceedings a challenge to a finding of fact might be made. Jackson LJ's conclusion 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 [49]. At [50(3)] he set out the test for permission: "…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."

In Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316 at [4] Jackson LJ elaborated this test: "….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." [40]

Mostyn J’s opinion was that this test, when correctly understood, is not (or should not be) materially different to that obtaining under the general law. Mostyn J stated that “it is important to understand that under the 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. The exceptions exist because the overriding consideration is that the application of an estoppel must be to work justice and not injustice”.

Mostyn J’s view was that Jackson LJ's test of "solid grounds", would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case, and which could not with reasonable diligence have been ascertained before.

He added that “this interpretation would have the advantage of ensuring that family law is not seen as a rogue castaway marooned on a desert island conducting itself without regard to the norms of the rest of the legal universe. It would help to promote a perception that family law is part of, and not separate from, the general law” [43].

Decision: Mostyn J concluded that the application as originally pleaded does not come anywhere near meeting the standard of 'solid grounds for believing that the original decision required revisiting'. He added that “nothing in the application as pleaded identified any special circumstances where it could be said that new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before” [50]. In his judgment Mostyn J determined that the stage one leave test is failed whether he applied the general law test of special circumstances or a more liberal interpretation of 'solid grounds' [70]. The mother's application was dismissed [71].

Judd J refused an application for a reporting restrictions order which would prevent the reporting the names of parents and a deceased sibling in a criminal trial for the murder of the sibling on the basis of the impact on G who was subject to care proceedings. The injunction was granted to prevent the reporting of G’s existence as a member of the family.

Background: This was an application by the local authority, supported by the other parties to the case proceedings, for a reporting restrictions order (“RRO”). The application was opposed by several media organisations, including the BBC, Times Newspapers Limited, ITN, and Associated Newspapers Ltd.

The care proceedings concerned a very young child, G, whose sibling, E, died in 2020. Within those proceedings, Judd J conducted a fact finding hearing late last year.

The parents were both charged with murder. On 14th January they appeared before the Magistrates' Court, and on 18th January at the Crown Court. They were both remanded in custody. At that stage, and by agreement the judge made an order pursuant to section 45 Youth Justice and Criminal Evidence Act 1999 prohibiting the reporting of the proceedings in a way that would result in G being identified. Following objections, the judge concluded on 21st January that he had no jurisdiction to make an order in respect of G, as she was not a witness, and it was not thought she would play any role in the criminal proceedings. In those circumstances the judge considered that the matter would be best considered by the family court.

As a primary position, the local authority sought an order which would prohibit the reporting of the defendants' names or the identity of the deceased child in any criminal proceedings. In the event of that submission being unsuccessful, the local authority invited the court at least to prohibit the identification of the deceased, or her relationship to her sibling. On their behalf, Mr. Goodwin QC advanced five grounds in support of the application. First it is submitted that it would be contrary to G's interests to be identified in the community as a child whose parents are subject to murder charges. Second it is submitted there is a long-term risk of identification given her distinctive name. Third if an adoptive care plan is pursued, the risks associated with publicity may deter prospective adopters from putting themselves forward. Fourth, life story work may be compromised if she is able to read press coverage about her sibling's death in an uncontrolled manner, and fifth as she is one of very few twins in the area she lives in who has experienced the death of a sibling, this enhances the risk of identification [4].

Legal Principles: The Law was set out in paragraphs [13-17]. The test to be applied by the courts when considering applications for orders restricting the identity of criminal defendants was set out by the House of Lords in Re S (A Child) [2005] 1 AC 593. Mr. Justice Baker (as he then was) summarised the principles in Re A (A Minor) [2011] EWHC 1764 (Fam) [2012] 1 FLR 239. These have been applied by judges in a number of cases since.

At paragraph 17 of Re S, Lord Steyn set out the approach to cases such as this which concern the interplay between articles 8 and 10 of the ECHR following the decision of the House of Lords in the case of Campbell v MGN Ltd [2004] 2 AC 457;

"First, neither article, has, as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each".

At paragraph 18, Lord Steyn set out the general or ordinary rule; "that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice, this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8".

Further, at paragraph 32, he pointed out that an inability to reveal the identity of a defendant at a criminal trial would, from a newspaper's point of view mean the trial was disembodied, meaning they would be less likely to give prominence to reporting it, and that informed debate about criminal justice would suffer.

There can be, and are, cases where the principles of open justice give way to the right to respect for private and family life under Article 8. Two examples of such cases are A Local Authority v W [2005] EWHC 1564 (Fam); [2006] 1 FLR1 and A County Council v M (Children) [2012] EWHC 2038 (Fam); [2013] 2 FLR 1270

Decision: Balancing the competing rights under Articles 8 and 10, Judd J refused the application to prohibit reporting of the names of either of the defendants or of the deceased in the criminal proceedings. Judd J concluded that the name of a child who has allegedly been killed is an important part of any report in the media, as are the names of the defendants. Without any of those names, Judd J agreed that the trial would become 'disembodied'. An order prohibiting the identification of any of them would have a profound effect upon open justice in what is a significant trial and create a precedent for other cases like it. Judd J did not think the situation could be compared to that if, for example, E had been the subject of an attempted murder and had lived. The provisions of s45 Youth Justice and Criminal Evidence Act 1999 would be there in those circumstances to protect her as the victim of that alleged crime [24].

The Court of Appeal (Lord Justice Baker and Lord Justice Snowden) refused an appeal against a fact-finding judgment in which a Recorder made findings that went beyond those sought by the local authority.

Background: L's mother has three children; J (a boy aged 6), K (another boy aged 4) and L (aged 2). The three children have different fathers, referred to respectively as X, Y and Z.

The local authority initiated pre-proceedings processes under the Public Law Outline and, in October 2020, J and K went to live with their respective fathers, X and Y, who each then started private law proceedings seeking child arrangements orders under s.8 of the Children Act. Within the proceedings relating to J, a prohibited steps order was made preventing the mother allowing any contact between J and Z save for contact supervised by the local authority [3].

On 5 January 2021, the local authority started these care proceedings in respect of L. At the first hearing on 27 January 2021, the court was satisfied that the interim threshold under s.38 was satisfied. L was made subject to an interim supervision order whilst remaining in the care of her parents.

On 16 June 2021, the local authority filed a revised threshold document, entitled "Schedule of facts the local authority allege in relation to threshold" [7]. On Friday 17 September 2021, the local authority filed a final version of the schedule of facts in relation to threshold, making minor amendments to the version filed in June, but in particular amending the particulars relating to the allegations of Z's drug use and adding:

"On 24 November 2017 Z was convicted of battery following him assaulting X." [11]

On 18 September 2021, counsel served a position statement on behalf of Z for the final hearing. That indicated that Z disputed a number of the factual allegations in the local authority's threshold document, largely in relation to domestic abuse of the mother. Z's position statement also made the point that the threshold document was not compliant with guidance in case law, in particular that given by Sir James Munby P in Re A (Applications for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1. Among other criticisms was the lack of a statement either from the housing officer referred to in sub-paragraph (c) of the threshold document or from the police officer to whom the complaint was made referred to in sub-paragraph (e) [12].

At the outset of the hearing on Monday 20 September 2021, the parties addressed the recorder as to the need for a fact-finding hearing in light of the agreements that had been reached between the parties. The argument focused on the approach identified by McFarlane J (as he then was) in A County Council v DP and others [2005] EWHC 1593 (Fam).

Counsel for the local authority, the mother and Z all resisted a fact-finding hearing taking place. The local authority's position was that it might struggle to establish that the threshold was met, in particular because an agency social worker who had previously been involved with the case, Ms. W, could not be located to give evidence because she had moved away and had not been warned that she might be needed to give evidence [18]. Having heard submissions, the recorder decided to proceed with the fact-finding hearing and gave a short judgment in which he set out his reasons, by reference to the factors identified by McFarlane J [21].

In the course of the oral evidence, the mother, Z and X were asked about incidents that went beyond the local authority's schedule of facts relating to threshold. In particular, X gave oral evidence confirming the account in his position statement of an early morning request by the mother to accept at transfer of funds from her account to protect them from Z [26].

The Judgment: the Recorder at [33] considered the complaint made about the threshold document. He acknowledged that some of the allegations "lacked specificity" and that in some instances there was a lack of any link "drawn between the factual allegation pleaded and the harm L has suffered or is at risk of suffering" [35]. The schedule of findings made by the recorder are set out at paragraph [51].

The Appeal: Applications for permission to appeal by the mother and Z were refused by the recorder. On 18 October 2021, Z filed notice of appeal to the Court of Appeal. On 22 November, permission to appeal was granted on two grounds:

(1) If the recorder was going to exercise his discretion to conduct a fact-finding, he was wrong to make so many findings outside the scope of the final threshold document, particularly bearing in mind the inability of the parents to test the evidence of the authors of the hearsay reports on which he was relying in making those findings.

(2) The recorder was wrong to find threshold made out, even if his findings about what Z did are undisturbed, because there was a lack of any adequate linkage from the events found to L suffering, or being likely to suffer, significant harm at the time proceedings were initiated.

Legal Principles: In Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145, Wall LJ said, in words which have been endorsed in subsequent cases:

"15. I am the first to acknowledge that a judge … is entitled to take a proactive, quasi-investigative role in care proceedings. Equally, she will make findings of fact on all the evidence available to her, including her assessment of the parents' credibility; she is not limited to the expert evidence. I am also content to decide the question in this appeal on the basis that a judge … is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored.

16. All that said, however, the following propositions seem to me to be equally valid. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go "off piste", and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised." [63]

In Re A (Applications for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1, Sir James Munby P at [8] - [9] observed that the fact that the burden of proof rested on the local authority carried with it the important practical and procedural consequence. At [12] he also noted a further "fundamentally important point" was,

"the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect." [64]

Reference was made to Re W (A Child) [2016] EWCA Civ 1140; [2017] 1 WLR 2415. The judge in that case had conducted a fact-finding hearing over allegations of sexual abuse against a family member, which he found not to have been proved. But in the course of his draft reserved judgment, the judge made findings of serious misconduct against the local authority social worker and the police officer involved in the case. They had no advance warning of the judge's intention to make those findings and appealed, asking that the findings be redacted from the judgment. [65] At paragraphs [91]-[94] Macfarlane LJ explained the factual background and the reason for allowing the appeal. MacFarlane LJ then went on to make some observations on procedural fairness in the context of Article 8 ECHR. Notwithstanding the very different factual scenarios, it was argued that the approach in the present circumstances should be the same. MacFarlane LJ said [67]:

"95. Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

a) Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence;

b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness."

The passages cited from Re G and B and Re W were recently endorsed by this Court in Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 [2020] 1 FLR 755. They were cited by Peter Jackson LJ in support of his succinct summary of the approach at [96]:

"Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so." [68]

In Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, the Court gave guidance on the proper approach to managing cases involving allegations of coercive control. Up to that point, it had been the usual practice in family cases to set out allegations of domestic abuse in a Scott Schedule. In Re H-N, the Court at [44] identified a problem with this approach in cases of alleged coercive control:

"The principled concern arose from an asserted need for the court to focus on the wider context of whether there has been a pattern of coercive and controlling behaviour, as opposed to a list of specific factual incidents that are tied to a particular date and time. Abusive, coercive and controlling behaviour is likely to have a cumulative impact upon its victims which would not be identified simply by separate and isolated consideration of individual incidents." [69]

Decision: In assessing whether the process by which the findings were made was fair, the Court of Appeal started by considering the disparity between the case advanced by the local authority and the recorder's findings. As Snowden LJ observed in the course of the hearing, the greater the extent of the disparity, the greater the need for procedural safeguards. It was determined that there is undeniably a disparity between the local authority's final schedule and the findings ultimately made by the recorder. Snowden LJ and Baker LJ accepted the submission that the recorder's findings were not, to use McFarlane LJ's phrase in Re W, outside the "known parameters" of the case [70].

It was concluded that the recorder also made an important finding relating to coercion and control of the mother by Z which was an allegation that had not been included to in the final version of the "Schedule of facts the local authority allege in relation to threshold" [73]. But, applying the approach set out in the authorities above, Snowden LJ and Baker LJ considered that the recorder had good reason to depart from the local authority threshold document, his finding was securely founded in the evidence, and it was made in a way that did not compromise the fairness of the process [74]. Although coercive control was not expressly pleaded in the final version of the local authority's threshold document, it was a concept that had featured prominently in the proceedings from the outset and had been addressed in the written evidence [75 and 85].

In conclusion, Snowden LJ and Baker LJ considered that the totality of the evidence before the recorder was plainly sufficient to support the recorder's findings and that no party was unfairly disadvantaged by the process by which the findings were made [91]. The appeal was dismissed.