Factual and Procedural Background
The case concerns care proceedings regarding a baby girl (“the Child”) born in July 2010 and her elder half-brother (“the Sibling”). In September 2010 the Child was admitted to The Hospital with multiple non-accidental fractures and bruising. A local authority began care proceedings three days later. The Child has remained in foster care; the Sibling lives with maternal grandparents.
A judge of the family court (“Judge P”) ordered a fact-finding hearing to establish how and by whom the injuries were caused. Hearings took place between May and November 2011, complicated by the Mother’s mental illness and lack of capacity, which led to the Official Solicitor acting for her. By the end of the evidence it was common ground that only the Mother or the Father could be responsible.
On 15 December 2011 Judge P delivered an oral “preliminary” judgment finding the Father to be the sole perpetrator. Counsel for the Father promptly asked for amplification of the reasoning. A draft order reciting the finding was produced, but it was not formally sealed until 28 February 2012 and this fact was unknown to the parties at the time.
On 15 February 2012 Judge P issued a written “perfected” judgment which, after fuller analysis of the evidence, concluded that it was impossible to identify which parent had injured the Child; both remained in the pool of possible perpetrators. At a directions hearing on 20 February the Mother sought an explanation for the change and later secured permission to appeal.
The Court of Appeal (majority) treated the judge as having acted without jurisdiction or wrongly exercised it, reinstated the December findings against the Father and quashed the February judgment. The Father, supported by the local authority, the Children’s Guardian and the maternal grandparents, appealed to the Supreme Court. The Supreme Court heard the matter urgently because the welfare hearing was imminent.
Legal Issues Presented
- Does a judge retain jurisdiction to revise a judgment after it has been delivered but before the resulting order has been sealed?
- If such jurisdiction exists, what principles govern its exercise in civil and, in particular, child-care proceedings?
- Did Judge P act properly in issuing the second judgment of 15 February 2012 without giving the parties prior notice or an opportunity to make further submissions?
Arguments of the Parties
Father’s Arguments (Appellant)
- The judge retained jurisdiction to change her decision because the December order had not been sealed; therefore she was not functus officio.
- Even if jurisdiction existed, the judge had sound reasons: after reflection she believed her initial finding was wrong and wished to avoid basing welfare decisions on a false factual platform.
- No party had irretrievably relied on the December finding; the Child’s placement had not yet been decided.
Mother’s Arguments (Respondent)
- The judge lacked jurisdiction once she had pronounced her decision; alternatively, if jurisdiction existed, it should be exercised only in truly exceptional circumstances (Barrell principle), which were absent here.
- The abrupt change deprived the Mother of the opportunity to make submissions and was procedurally unfair.
- Restoring the February judgment would undermine finality and create uncertainty in care proceedings.
Positions of Other Participants
- The local authority, the Children’s Guardian and the maternal grandparents supported the Father, contending that the judge was entitled to revise her findings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| In re St Nazaire Company (1879) 12 Ch D 88 | No general power to review perfected orders after Judicature Acts | Cited as historical background; distinguished because it concerned perfected orders |
| In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693 | Jurisdiction ends once order perfected; before perfection judge may reconsider | Supports existence of pre-sealing jurisdiction |
| Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 | Affirms power to revise decision before order drawn up | Relied on as authority that jurisdiction continues pre-sealing |
| In re Harrison’s Share Under a Settlement [1955] Ch 260 | Judge retains control until order completed but must act judicially | Quoted to emphasise need for fairness when reconsidering |
| In re Barrell Enterprises [1973] 1 WLR 19 | ‘Exceptional circumstances’ limitation on revisiting judgments | Supreme Court declined to follow, treating test as too rigid |
| Pittalis v Sherefettin [1986] 1 QB 868 | Diluted the Barrell “exceptional” test | Used to illustrate judicial movement away from strict limitation |
| Stewart v Engel [2000] EWCA Civ 362; [2000] 1 WLR 2268 | Confirms survival of pre-sealing power under CPR; differing views on ‘exceptional circumstances’ | Cited, Supreme Court aligning with the minority view that justice is overriding objective |
| In re Blenheim Leisure (Restaurants) Ltd (No 3), The Times 9 Nov 1999 | Examples when revisiting may be just (plain mistake, new facts, etc.) | Provided illustrative, not exhaustive, factors |
| Cie Noga d’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513 | Emphasised balancing finality with justice; “strong reasons” test | Quoted approvingly as flexible approach |
| Robinson v Fernsby [2003] EWCA Civ 1820; [2004] WTLR 257 | Reiterated judge’s ability to recall order before sealing; cautioned against over-rigid tests | Supports broader discretion |
| Paulin v Paulin [2009] EWCA Civ 221; [2010] 1 WLR 1057 | Historical survey of revisiting jurisdiction; notes lack of universal welcome for Barrell | Cited in same vein |
| In re A (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205; [2012] 1 WLR 595 | Advocates’ duty to seek clarification; fact-finding orders interlocutory | Illustrates procedural expectations in care cases |
| Re S-B (Children) [2009] UKSC 17; [2010] 1 AC 678 | Judge may revisit perpetrator identification if fresh evidence emerges | Used to justify flexibility in care proceedings |
| In re I (A Child) [2010] 1 AC 319 | Example of revisiting findings on new material | Cited along with Re S-B |
| In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 | Appeal possible even where no interim order drawn up | Background on procedure |
| In re M and MC (Care: Issues of Fact) [2002] EWCA Civ 499; [2003] 1 FLR 461 | Fact-finding findings can be revisited on later evidence | Supports ability to alter factual substratum in welfare phase |
| English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 WLR 2409 | Guidance on seeking amplification of reasons | Referenced in debate on whether parties should have been invited to make submissions |
Court's Reasoning and Analysis
The Supreme Court confirmed the long-standing principle that a judge may change a decision at any time before the corresponding order is perfected (now, sealed under CPR r 40.2(2)(b)). It reviewed nineteenth- and twentieth-century authorities showing that absence of a perfected order preserves jurisdiction, and noted that neither the Civil Procedure Rules nor the Family Procedure Rules abrogate this power.
The Court rejected the Court of Appeal’s reliance on the Barrell “exceptional circumstances” limitation. Instead, the governing criterion is the overriding objective of dealing with cases justly, which in child-care cases includes minimising delay and prioritising the child’s welfare. While undue tergiversation is discouraged, a carefully reasoned change of mind can suffice; each case turns on its facts.
Applying those principles, the Court found that Judge P:
- Retained jurisdiction because the December order was unsealed.
- Acted in good faith after fuller reflection on extensive evidence.
- Did not cause irretrievable reliance or prejudice; the Child’s placement was still undecided.
- Faced a paramount need to make welfare decisions on a correct factual basis; compelling her to adhere to findings she believed wrong would conflict with section 1(1) Children Act 1989.
The Court accepted that procedural fairness may require giving parties an opportunity to address a proposed change, but in the circumstances (voluminous written submissions, no new evidence) further argument would likely have added nothing.
Holding and Implications
HELD: The appeal was allowed; the Court of Appeal’s order was set aside and Judge P’s judgment of 15 February 2012 was reinstated as the factual basis for the welfare hearing.
Implications: The decision confirms that, prior to sealing, a judge may revise findings without having to satisfy an “exceptional circumstances” test. The overriding objective and, in care cases, the child’s welfare guide the discretion. While encouraging properly reasoned first-instance judgments, the ruling affords necessary flexibility to correct errors swiftly and avoid welfare decisions founded on doubtful facts. No new formal doctrine was created, but existing jurisprudence was clarified and the rigid Barrell approach was disapproved.