Father wins Supreme Court appeal after judge changed her mind in care case

The Supreme Court has allowed a father’s appeal in a case where it considered the circumstances in which a judge in care proceedings was entitled to change her mind.

The case of In the matter of L and B (Children) [2013] UKSC 8 related to proceedings concerning a child, S, and her half brother, T. The proceedings were commenced after S was taken to hospital with serious injuries.

A fact-finding hearing was ordered to determine whether S’s injuries were non-accidental and, if so, the identity of the perpetrator. The hearings lasted over several days, spread between 31 May and 25 November 2011 because of the mother’s mental health.

It became common ground that the injuries were non-accidental and the only possible perpetrators were the mother and father.

In written submissions, the local authority said – in what Lady Hale called “a noticeably balanced account of the evidence” – that it was not possible to identify a sole perpetrator on the evidence. The mother argued that the father was sole perpetrator and the father argued that the mother was sole perpetrator. The children’s guardian took a neutral stance.

On 15 December 2011 Judge Penna gave an oral preliminary outline judgment (‘the December judgment’). This found that the father was the perpetrator. The judge also she would address any requests from the parties for details on specific points. Counsel for the father asked her to address a number of issues in an addendum.

The order drawn up as a result of the December judgment set out the next steps in the case, including an experts’ meeting before a further directions hearing on 23 January 2012, with a final hearing provisionally booked for 20 February. Unbeknown to anyone at the time, that order was not formally sealed by the court until 28 February 2012.

Before that, on 15 February 2012, the judge delivered a written ‘perfected judgment’ (‘the February judgment’) – a “bombshell” according to Lady Hale – which reached a different conclusion from her oral judgment.

The February judgment expanded on the earlier judgment in some respects, but also reached a different conclusion. “Given the uncertain nature of the evidence after the passage of so much time I am unable to find to the requisite standard which of the parents it was who succumbed to the stress to which the family was subject,” Judge Penna said. “It could have been either of them who injured S and that is my finding.”

The judge ordered that a hearing listed for 23 February be used for case management, with a view to a further assessment of the father as a career for S, rather than for considering the placement with the maternal grandparents.

The mother, the Official Solicitor acting as her litigation friend, was granted permission to appeal against the February judgment.

The Court of Appeal by a majority allowed her appeal, quashed the February judgment and ordered that the findings of the December judgment as to the perpetration of the injuries to S should stand.

The father brought an appeal to the Supreme Court with the support of the local authority, the children’s guardian, and – “tellingly”, said Lady Hale – their maternal grandparents (with whom T had been residing). The mother, now acting on her own behalf, opposed this.

The Supreme Court unanimously allowed the appeal at the conclusion of the oral hearing on 21 January 2013. The written judgment, given by Lady Hale and with which all the justices agreed, was published this week.

Lady Hale said the law – established by the Court of Appeal no later than the case of Millenstad v Grosvenor House (Park Lane) Ld [1937] 1 KB 717 – was that a judge could reverse his decision at any time before his order is drawn up and perfected.

In the absence of express power to vary or discharge his own orders, any general power for a judge to review his order once perfected was abolished by the Judicature Acts 1873 and 1875 but the power to reconsider the matter before an order was perfected survived.

Lady Hale said: “Thus there is jurisdiction to change’s one mind up until the order is drawn up and perfected. Under the Civil Procedure Rules (rule 0.2(2)(b)), an order is now perfected by being sealed by the court. There is no jurisdiction to change one’s mind thereafter unless the court has an express power to vary its own previous order. The proper route of challenge is by appeal.

“On any view, therefore, in the particular circumstances of this case, the judge did have power to change her mind. The question is whether she should have exercised it.”

Lady Hale said that the judge’s overriding objective – in revisiting his own decision – must be to deal with the case justly. “A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it was expected that they may do so before the order is formally drawn up.”

Lady Hale said the Court of Appeal had applied an exceptionality test which she thought was not the correct approach. The Court of Appeal had been right to consider the extent to which the December decision had been relied upon by the parties, but in her view Rimer LJ had been correct to doubt whether anyone had irretrievably changed their position as a result.

“The majority [of the Court of Appeal] were right to stress the importance of finality, but the final decision had yet to be taken,” she added. “I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis.”

Lady Hale rejected a suggestion by the mother’s QC that Judge Penna should have given the parties notice of her intention to change her mind and a further opportunity of addressing submissions.

“In this particular case…. there had been the usual mass of documentary material, the long-drawn out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

Lady Hale went on to address the issue of what the position would have been if – unlike in this case – the order had already been sealed by the time a judge had made up their mind.

She said that in care proceedings, the fact-finding hearing was merely part of the whole process of trying the case (a point Lady Hale had previously made in In re B [2009] AC 11).

“In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong,” she added. “It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal.”

This was reinforced by the procedural position, Lady Hale pointed out. Both the Civil Procedure Rules and the Family Procedure Rules made it clear that the court’s wide case management powers included the power to vary or revoke previous case management orders. The question becomes whether or not it was proper to vary an order.

“Clearly that power does not enable a free-for-all in which previous orders may be revisited at will,” she said. “It must be exercised ‘judicially and not capriciously’. It must be exercised in accordance with the overriding objective.”

Lady Hale said that the arguments were finally balanced in cases where the later development is simply a judicial change of mind.

She added that children cases might be different from other civil proceedings because the consequences were so momentous for the child and for the whole family. “The court had to get it right for the child.”

Lady Hale added: “This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.”

On the other hand, the purpose of the fact-finding hearing was to create a platform of established facts which would be undermined, throwing the later hearings into disarray, if a judge could be urged to change his mind and in effect hear an appeal against himself. As the point did not arise in this case, Lady Hale declined to express a view.

In a concluding comment, Lady Hale said the problems would have been avoided if Judge Penna had given a full and reasoned judgment in the first place.

“Furthermore, if the judge had not changed her mind, the father would have had the opportunity of appealing against her findings to the Court of Appeal. One extraordinary result of the Court of Appeal’s order in this case was that the findings against the father were restored without his having had the opportunity which he should have had of mounting a proper appeal against them.”