E (Children: Reopening Findings of Fact)

Factual and Procedural Background

This appeal concerns the mother of three children from the traveller community, who were removed from her care in January 2018 following findings that the youngest child had suffered cigarette burns. The trial judge found the mother’s evidence unreliable and concluded the injuries were inflicted deliberately or caused by serious negligence, resulting in care orders made in August 2018. The mother sought to challenge these findings based on a new expert report obtained after the trial, which provided a plausible accidental explanation for the injuries. The mother applied for permission to appeal out of time and to admit this new evidence, which was opposed by the local authority and Guardian. The appellate court admitted the report but concluded that the better course was for the mother to apply to the trial judge to reconsider the findings of fact, rather than pursue the appeal. The appeal was dismissed, and directions were given for the trial judge to consider reopening the findings.

Legal Issues Presented

1. Whether a party wishing to challenge findings of fact in family proceedings on the basis of further evidence unavailable at trial must do so by appeal or may apply to the trial court.
2. If both routes are available, which is the more appropriate course for challenging findings of fact based on further evidence.
3. The scope of the family court’s jurisdiction to reopen or revisit findings of fact after a final order has been made and sealed.

Arguments of the Parties

Appellant's Arguments

• The new expert report undermines the trial judge’s findings and supports a retrial or reconsideration of the facts.
• The appeal out of time should be permitted to admit the new evidence as it was not available at trial.
• The mother’s credibility and the findings against her are challenged by the further expert evidence.

Respondents' Arguments

• The account found plausible by the new expert was not the one ultimately given by the mother at trial.
• The mother’s credibility remains unaffected by the new evidence.
• The appeal is not the appropriate route; the trial judge is better placed to consider reopening findings of fact.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal: (1) evidence could not have been obtained with reasonable diligence at trial; (2) evidence likely to have important influence on outcome; (3) evidence must be credible.	Confirmed the criteria were satisfied for admitting the new expert report; guided the court’s approach to fresh evidence in family proceedings.
Sharab v Al-Saud [2009] EWCA Civ 353	Supports the application of the overriding objective of doing justice when admitting fresh evidence.	Referenced in relation to the admission of fresh evidence and the overriding objective.
Webster v Norfolk County Council [2009] EWCA Civ 59	Family jurisdiction’s willingness to relax the strictness of the Ladd v Marshall criteria in children’s cases to preserve flexibility for best interests.	Supported the principle that children’s welfare justifies a more flexible approach to admitting fresh evidence.
Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117	There is no strict issue estoppel in children cases; court discretion governs whether to reopen findings of fact.	Outlined factors for reopening findings, balancing finality against welfare, and the need for reasoned decisions.
M & MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461	Trial court can revisit fact-finding if further evidence warrants it, especially in split hearings.	Endorsed the notion that fact-finding is preliminary and subject to revision before welfare decisions.
Re S-B (Children)(Non-accidental Injury) [2010] 1 AC 678	Supreme Court endorsement that a judge can revisit earlier identification of perpetrator if fresh evidence justifies it.	Supported the principle that fresh evidence can justify reopening findings in family proceedings.
Lake v Lake [1955] P 336	Findings of fact must have legal significance to be challenged; dislike of a finding is insufficient.	Applied to emphasize that challenges must relate to findings with practical or legal consequences.
Cie Noga d'Importation et d'Exportation SA v ANZ Banking Group Ltd [2002] EWCA 1142	Confirming the principle that findings must have legal significance to be challenged.	Supported the limitation on the scope of challenges to findings of fact.
Re G [2014] EWCA Civ 1365	Provisional view that no jurisdiction exists to reopen findings of fact after a sealed order, only appeal is available.	The court distinguished this view and held the family court has power to review findings under statutory provisions.
Re L and B (Children) [2013] UKSC 8	Confirmed that a judge may change their mind before the order is sealed, but after sealing, the proper route is appeal.	Discussed in relation to when findings of fact may be revisited; distinguished from reopening based on new evidence.
Matrimonial and Family Proceedings Act 1984, section 31F(6)	Gives family court power to vary, rescind or revive any order made by it, including reconsidering findings of fact.	Held to provide statutory jurisdiction for the family court to review findings of fact even after proceedings conclude.
Gohil v Gohil [2015] UKSC 61 and Sharland v Sharland [2015] UKSC 60	Addressed reopening final financial orders on grounds such as non-disclosure; confirmed family court’s power under s.31F(6).	Supported the conclusion that family court has power to revisit final orders and findings.
Birmingham City Council v H (No. 1) [2005] EWHC 2885 and Birmingham City Council v H (No. 2) [2006] EWHC 3062	Established a three-stage test for reopening findings: permission to reconsider, scope of evidence, and hearing of review.	Applied to outline the proper approach for applications to reopen findings of fact.
Re ZZ [2014] EWFC 9	Confirmed the three-stage approach to reopening findings in family proceedings.	Supported the structured approach to applications to review findings.
Re AD & AM (Fact Finding Hearing: Application for Rehearing) [2016] EWHC 326	Emphasized careful assessment of further medical opinions and control of evidence gathering in review applications.	Illustrated the need for judicial control over review processes.
Re X [2016] EWHC 1342	High Court’s inherent jurisdiction to direct rehearing in children cases where appeal is not available.	Demonstrated the High Court’s ability to review findings despite lack of s.31F jurisdiction.

Court's Reasoning and Analysis

The court began by emphasizing the critical importance of reliable findings of fact in family welfare proceedings, noting that such findings underpin welfare decisions and may have long-lasting consequences. It recognized the competing public interests of justice and finality, requiring a careful balance when considering challenges to findings of fact.

The court considered the procedural options for challenging findings of fact based on further evidence not available at trial: appeal or application to the trial court. It acknowledged the established criteria from Ladd v Marshall for admitting fresh evidence on appeal but highlighted that these criteria are applied with flexibility in children’s cases to serve the child’s best interests.

Reviewing relevant case law, the court noted that there is no strict issue estoppel in children cases and that courts have a discretion to permit rehearing where there is reason to believe a different outcome may result. It stressed that applications to reopen findings must be reasoned and balanced against public policy considerations, including the efficient use of court resources and the welfare of the child.

The court distinguished between reopening findings during continuing proceedings and after proceedings have concluded. It held that the family court has statutory power under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to review its findings of fact even after a final order has been sealed and the proceedings ended. This statutory power allows the family court to vary, rescind, or revive orders and findings, reinforcing the court’s ability to ensure decisions remain just and welfare-focused over time.

The court found that, generally, an application to the trial court is a more suitable and efficient route for challenging findings of fact on the basis of further evidence than an appeal. The trial judge is better placed to assess the significance of new evidence and to manage the process, especially when the findings are recent and the same judge is available. Appeals remain appropriate where an error of law or procedural irregularity is alleged, or where the trial judge is not the proper arbiter.

The court set out the three-stage approach to applications to reopen findings: permission to reconsider, determination of the scope of evidence, and the hearing itself. It emphasized the need for judicial control to focus on relevant issues and the importance of balancing finality with the need to establish the truth in the child’s best interests.

Finally, the court noted the procedural gap in the High Court regarding such applications and suggested that rules equivalent to those for the family court could be beneficial for consistency and clarity.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL as an inappropriate route for challenging the findings of fact based on the new expert evidence. Instead, the court directed that the matter be referred to the trial judge for consideration of whether and to what extent the findings should be reopened in light of the further evidence.

The direct effect is that the mother’s challenge to the findings of fact will be considered by the original trial judge through an application process rather than by appellate review. This approach prioritizes judicial efficiency, appropriate use of court resources, and the welfare of the children by ensuring factual issues are examined by the judge best placed to assess them.

No new legal precedent was established beyond clarifying the statutory power of the family court under section 31F(6) to review findings of fact post-final order and the preference for applications to the trial court over appeals in such circumstances.