Re-opening cases and findings
Sara Chalk summarises a Family Court ruling on an application by a mother to reopen findings in care proceedings that were concluded in 2023, on the grounds that she was unable to attend court, due to the absence of an intermediary.
The case of S v Birmingham City Council & Ors [2024] EWFC 244 (B) (24 April 2024) relates to an application by Mother to reopen findings in care proceedings that ere concluded in 2023, on the grounds that she was unable to attend court, due to the absence of an intermediary. The basis of Mother’s application was that she had not had the benefit of an intermediary in proceedings relating to her older children but in subsequent proceedings regarding a new baby she had received an intermediary assessment which recommended she have the benefit of an intermediary. The Mother therefore made an application to reopen the threshold findings and welfare decision made in respect of her older children. The application was opposed by the Local Authority and the Children’s Guardian who submitted this was effectively an appeal through the back door out of time. The application was ultimately dismissed by the Court . The reasons for this will be set out below.
This case provides a useful reminder as to the relevant law and principles in relation to:
- Re-opening cases and findings
- The use of intermediaries
- The effects of Non-compliance
Background
On 6th-10th March 2023 District Judge Parker heard a final hearing of the local authority’s application for care orders for SH, SA, SI and A and care and placement orders for A. The final hearing came before the Court in week 90 of proceedings.
The Mother, S, was unrepresented by choice at the time of the final hearing and was not in attendance on days 1 to 4 of the hearing or for judgment on day 5 despite clearly wishing to challenge all the evidence. The mother also failed to attend the advocates’ meeting. The Mother had written to the Court setting out the reasons why she did not intend to attend the final hearing and seeking for it to be adjourned. The Judge noted the mother's engagement with professionals within those proceedings had been limited and her compliance with court orders somewhat patchy.
During those proceedings there had been a negative PAMS assessment of the Mother. The Mother lodged a Part 25 application for an ISW assessment which was refused. A ground rules hearing took place on 25th October 2022 in respect of her participation at the final hearing in accordance with the recommendations of her cognitive assessment – it being noted no intermediary was recommended.
The final hearing proceeded in the mother’s absence and on day 1 of the final hearing, the Court refused the Mother’s application to adjourn. The Mother was informed of the Courts decision and although no formal permission to appeal the decision was sought, the other indicated to the court that her intention not to attend remained steadfast. Despite that, the Judge treated her subsequent challenge to his decision as an appeal and again refused her permission to appeal for the reasons set out in a written judgment. At the conclusion of the final hearing the Court found threshold on the basis of the Local Authority’s final threshold document and made Care Orders in respect of all of the children and a placement Order in respect of A with the consent of the Mothe dispensed with. No application for permission to appeal that order was made.
On 4th January 2024 the Mother made an application to reopen the findings from the previous proceedings on the basis that she now states she was not able to participate in the proceedings by reasons of the absence of an intermediary when one was required and therefore the proceedings were procedurally unfair.
In support of her application the Mother relies upon the papers from a new set of proceedings in respect of a child born subsequent to the conclusion of the previous proceedings under case no BM23C5019C, including an intermediary report dated 24th August 2023.
The Mother’s application to reopen the previous findings came before the Court on paper on 15th January 2024. The Court refused the application of the Court’s own initiative pursuant to FPR 18.11 for the following reasons:
- Firstly, that throughout the final hearing the mother failed to attend through choice, despite being given ample opportunity to do so.
- Secondly, the application appears to be in essence an appeal via the back door and significantly out of time.
- Thirdly, in the alternative of it being an application under rule 27.5(3), it equally fails the necessary test.
The Mother then exercised her right under FPR 18.11 for the Court to review its decision at an attended hearing. The Mother, Local Authority and Children’s Guardian attended this hearing and were all represented. Each party had filed a skeleton argument and the Court heard oral submissions.
Revisiting findings
A court will only entertain a reopening of a fact finding when there is genuine new information and when a reopening is likely to make a significant difference to the arrangements for the children. The test for revisiting earlier findings is a three-stage test as originally set out in Re ZZ and Others (Care Proceedings: Retraction of Testimony) 2014 EWFC 9:
"At the first stage the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding. One does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough, there must be solid grounds to challenge.
The second stage relates to and determines the extent of the investigations and evidence concerning the review and the third stage is the rehearing of the review".
That case further states that:
"There is an evidential burden on those who seek to displace an earlier finding in the sense that they have to 'make the running'. But the legal burden of proof remains throughout where it was at the outset. The judge has to consider the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court.
At the first stage, the court considers whether it will permit any reconsideration, review or challenge to the earlier finding. If it does, the second and third stages relate to its approach to that exercise. Above all, the court is bound to want to consider 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. The court will want to know whether there is any new evidence or information casting doubt upon the accuracy of the original findings".
As for the first stage, in the case of Re T and J (Children) (Fact Finding Rehearing) [2020] EWCA Civ 1344, the Court of Appeal distilled the principles as follows:
"The court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other. It should weigh up all the relevant matters. These will include the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence. Above all, the court is bound to want to consider whether there was any reason to think that a rehearing of the issue will result in any different finding from that in the earlier hearing. There must be solid grounds for believing that the earlier findings require revisiting"
As said in Re B (A Child) [2012] EWCA at 1742:
"It will take powerful evidence to persuade the judge to permit a party to reopen the findings".
In Re E (Children) (Reopening Findings of Fact) [2019] EWCA at 1447 it is said that:
"When a court is faced with an application to reopen a previous finding of fact, the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other. It should weigh up all the relevant matters",
Again recently, in Re CTD (A Child: Rehearing) [2020] EWCA 1316 the court was given a further opportunity to consider the three-stage test on reopening findings of fact. Commenting on the first stage, it confirmed:
"The court has to ask whether the applicant has shown solid grounds for believing that the previous findings require revisiting and that a rehearing would result in a different finding. A decision to allow past findings to be relitigated has to be a reasoned one. The court would also need to be satisfied that the challenged finding was likely to make a significant legal and practical difference to the arrangements for the children.
The second stage is that the court has to make a case management decision to ensure that the hearing does not become a free-for-all in which evidence is repeated and issues reopened without good reason".
The third stage is the rehearing itself:
"Once the decision is taken to reopen the case, the court approaches the task of a fact finding in the conventional way. It does not give presumptive weight to the earlier findings. A rehearing, therefore, is quite distinct from an appeal, in which findings stand unless they are shown to be wrong".
As more recently quoted by counsel for the mother, we have Re J (Children: Reopening Findings of Fact) [2023] EWCA 465 where the court confirmed that the law in relation to reopening findings of fact in children's cases is settled and found in the two previous cases, namely the three-stage test. In so far as the first stage is concerned, however, it says this:
"For the court to consider whether it will permit any reconsideration of the earlier finding, one has to remind oneself of the balance of public policy favouring finality in litigation and soundly-based welfare decisions on the other, and if so to determine the extent of the investigations to be considered. Also, is there any reason to think that a rehearing will result in a different finding on the earlier trial. There have to be solid grounds for believing that earlier findings require revisiting"
Intermediaries
In cases where a witness or party faces cognitive difficulties, the court has the option of appointing an intermediary or indeed a lay advocate to assist a party or witness with problems of communication or understanding. The Equal Treatment Bench Book defines the intermediary's role as:
"Facilitating communication between all parties and ensuring the vulnerable person's understanding and participation in the proceedings. This includes making an assessment and reporting orally or in writing to the court about the communication needs of the vulnerable person and the steps that should be taken to meet those needs".
Section 29.2 of the Youth Justice and Criminal Evidence Act 1999, provides that:
"The function of an intermediary is to communicate to the witness questions put to the witness and to any person asking such questions, the answers given by the witness in reply to them and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question".
That provision is replicated in the Family Procedure Rules 3A paragraph 1:
"Intermediaries, moreover, can assist by carrying out an initial assessment of the person's communication needs, providing advice to professionals on how a vulnerable person communicates, their level of understanding and how it would be best to question them whilst they are giving evidence. Directly assisting in the communication process by helping the vulnerable person to understand questions and helping them to communicate their responses to questions. Writing a report about the person's specific communication needs and assisting with court familiarisation".
Within the criminal context, in R on the application of OP v Secretary of State for Justice [2014] EWHC 1944 the issue for the court was whether an intermediary was required for the whole trial or just whilst the defendant gave their evidence. Analysing this issue, Lord Justice Rafferty identified two distinct needs which may arise during a hearing:
"The first is founded in general support, reassurance and calm interpretation of unfolding events. The second requires skilled support and interpretation with a potential for intervention and on occasions suggestion to the Bench associated with the giving of the defendant's evidence. The first task is readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial, In play are understandable emotions, uncertainty, perhaps a sense of territorial disadvantage, nervousness and agitation.
The second requires developed skills of the type contemplated by the inclusion in the witness intermediary scheme. The most pressing need for the help of an intermediary self-evidently bites at the point of maximum strain. That is when the accused, should he or she do so, elect to give an account of themselves by entering the witness box and submitting to cross-examination".
In that case the court held that they were:
"not persuaded that it was essential for a registered intermediary to be available to all defendants for the duration of their trials. In many instances the provision of help centred upon the cast of mind and life experiences described that are likely to prove sufficient. A pinch point is in the giving of evidence when in the court's view it is unarguable that an individual in jeopardy should be put in the best position to do justice to themselves."
I note the case of R v RT and Another [2020] EWCA Crim 155, another criminal case:
"Intermediaries are not to be appointed on a just in case basis or because the report by the intermediary, the psychologist or the psychiatrist has failed to provide the judge with a proper analysis of a vulnerable defendant's needs in the context of the particular circumstances of the trial to come. These are fact-sensitive decisions that call for not only an assessment of the relevant circumstances of the defendant but also the circumstances of the particular trial. Put otherwise, any difficulty experienced by the defendant must be considered in the context of the actual proceedings which they face.
Cases vary infinitely in factual complexity, legal and procedural difficulty and length. Intermediaries should not be appointed as a matter of routine trial management but instead because there are compelling reasons for taking this step, it being clear that all other adaptations to the trial process would not sufficiently meet the defendant's needs to ensure that they can effectively participate in the trial."
Thus, from the criminal context, the principles which the court will consider when faced with an application for an intermediary to assist during or throughout trial will include the following.
Firstly there is no presumption that a defendant will be assisted by an intermediary and even where an intermediary would improve the trial process, appointment is not mandatory.
Secondly, the court is expected to adapt the trial process to address a defendant's communication needs.
Thirdly, directions to appoint an intermediary for a party's evidence will thus be rare, and for the entire trial, extremely rare.
Fourthly, where a party is vulnerable, or for some other reason experiences communication difficulties such that they need more help to follow the proceedings than their legal representatives readily can give, having regard to their other functions on the defendant's behalf, then the court should consider sympathetically any application for that party to be accompanied throughout the trial by a support worker or other appropriate companion who can provide assistance.
Fifthly, a trial will not be rendered unfair because a direction for an intermediary for the defendant is ineffective, for example, because one cannot be found.
Finally, faced with an ineffective direction it remains the court's responsibility to adapt the trial process to address the defendant's communication needs.
In the family law context, reference can be had to the case of West Northamptonshire Council v KA [2024] EWHC 79which largely mirrors the approach adopted within the criminal jurisdiction:
"It will be extremely rare for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a just in case basis. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. ...........a judge appointing an intermediary should consider very carefully whether a whole trial order is justified and not make such an order simply because they are asked to do so. The judge must give careful consideration not merely to the circumstances of the individual but also the facts and issues in the case. Intermediaries should only be appointed if there are compelling reasons to do so and intermediaries should not be appointed simply because the process would be improved.
In determining whether to appoint an intermediary, the judge should have regard to whether there are other adaptations which will sufficiently meet the need to ensure the defendant can effectively participate in the trial. The application must be considered carefully and with sensitivity but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the court.
If every effort has been made to identify an intermediary but none has been found, it would be unusual, indeed it is suggested very unusual for a case to be adjourned because of the lack of an intermediary. In R v Cox, the Court of Appeal set out some steps which can be taken to assist the individuals to ensure effective participation where no intermediary is appointed. These include having breaks in their evidence and importantly ensuring the evidence is adduced in very shortly-phrased questions and witnesses are asked to give their answers in short sentences. This was emphasised by the Court of Appeal in R v Rashid [2017] 1 WLR 2449".
It must not be forgotten that intermediaries also require the informed consent of the witness they are appointed to assist. Paragraph 1.3 of Practice Direction 3AA that confirms that it is the court's duty as well as the parties' to actively consider and identify any party or witness who is vulnerable at the earliest possible stage of any family proceedings. Indeed, it is an ongoing duty throughout the case. Furthermore, by virtue of paragraph 1.4, all parties and their representatives are required to work with the court and each other to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability, as defined with reference to the circumstances of each person and to the nature of the proceedings.
The effects of non-compliance
A wholesale failure to apply the Part 3A procedure to a vulnerable witness will make it highly likely that the resulting trial will be judged to be unfair. However, as said in Re N (A Child) [2019] EWCA 1997:
"It would go too far to say that a rehearing is inevitable in all cases where there has been a failure to identify a party as vulnerable, with the consequence that no ground rules have been put in place in preparation for their giving evidence and no intermediary or other special measures provided for their assistance".
This is reiterated in the case of Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8:
"It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be first, whether there has been a serious procedural or other irregularity and secondly, if so, whether as a result the decision is unjust".
In Re A Local Authority v A Mother [2022] EWHC 2793. In that case there was a failure to adhere to the ground rules and provide regular breaks for parents with low cognitive functioning, and therefore the hearing was deemed unfair. The parents had ultimately been provided with intermediaries. However, as indicated, there is no automatic consequence that a lack of participation directions, even if they may have been appropriate had they been considered at the relevant time, will lead to a decision being overturned. The question has to be determined on the facts of the particular case. Here of course we did have the benefit of a cognitive functioning report and indeed a ground rules hearing.
In BF v LE [2023] EWHC 2009 Mrs Justice Lieven, echoing the previous case of Re S [2022] EWCA 8, and observed that:
"There is no consequence that a lack of participatory directions, even if they might have been appropriate under the relevant rule and Practice Direction, will lead to a decision being quashed. The question is whether the failure to do so amounts to a breach of natural justice or an unjust decision. It is only if the lack of special measures leads to a breach of natural justice which itself impacted on the outcome of the case that a decision might be set aside".
Again, in SP v DM [2023] EWHC 2089, it was not accepted that any lapse or non-compliance with participation directions in some way makes the trial process unfair or puts a party at a disadvantage.
The Court’s Decision
It is accepted that the purported procedural irregularity and breach of Article 6 by way of what is in essence a hindsight analysis, was not apparent to the court at the time and no criticism is made of the court itself. The process of that hearing was based upon the previous cognitive functioning report and the ground rules hearing which subsequently took place in relation to mum's participation at the final hearing before me, a final hearing which ultimately the mother failed to participate in.
The cognitive functioning report was not subsequently challenged nor indeed were questions raised pursuant to FPR 25.10.
Upon considering the state of the evidence at that stage, it appears more likely than not that even if an application for an intermediary had been made at the time, the evidence before the court was insufficient to have persuaded the court to appoint one.
The point is made that without an intermediary, Mother did not feel able to attend the final hearing at all. That, in my view, is also highly speculative. She by her own choice had disengaged from the process, including engagement with professionals, and by her own choice became unrepresented and indeed ceased having contact with her own children. Having representation would have added an important layer of support.
Having an intermediary, whilst providing communication support for the mother, would not have addressed the issue of her being unrepresented and in essence having to conduct proceedings, and the ultimate final hearing herself, subject of course to the adherence to necessary ground rules.
Mother's failure to participate at all in the hearing, in my view, deprives the court of the ability to assess itself what measures could be taken to enable her to effectively participate in the hearing as per paragraphs 1.3 and 1.4 of Practice Direction 3AA which I have described. Her non-attendance would have rendered any intermediary appointed wholly redundant, their role being limited to assistance at hearings at which evidence is normally given.
Indeed, bearing in mind Mother's non-participation in relation to disengaging with professionals, disengaging with the court process, not attending the hearing, stopping contact, it is a moot point as to whether or not she would have even consented to an intermediary, giving the level of mistrust she had in the entire court process.
It is argued that Mother would not have known of her entitlement to have an intermediary. I think "Entitlement" is too strong a word. I must also remind myself, of course, that within those proceedings a cognitive functioning report was sought and obtained, a ground rules hearing took place and she was at various times represented, albeit not at the final hearing or in the run-up to it.
It is contended that the mother has made transformative progress in the fresh proceedings, due no less to the input of having an intermediary within those proceedings. I am afraid that I am not convinced with regard to this contention. It may be contended that the experience she had in relation to the proceedings conducted before me has to some extent galvanised her in not wanting history to repeat itself. However, I am afraid that without playing down the role of an intermediary, which provides an invaluable role of support to vulnerable parties, in this case the purported transformative effect of the intermediary, in my view, has been 'over-egged'. As the children's guardian says, there is a difference between communication issues and engagement issues.
As to the relevance of the additional evidence by way of the intermediary's assessment, I am not persuaded, in the circumstances of this case, that the evidence would result in the court making any different finding from that which it did. There have to be solid grounds for believing that the earlier findings require revisiting. Mere speculation and hope are not enough. In this case I am presented, in my view, with an application which is purely speculative.
Indeed, the report outcome from the residential unit in the current ongoing proceedings in my view reinforces this and moreover, evidences that such change that there is is not, in my view, solely down to the intermediary's input, the report itself containing a number of caveats and indeed outlining a number of concerns.
It is also not without relevance that there are ongoing contested proceedings for an adoption order in relation to A which, of course, will entail consideration in any event of any change of circumstances Mother wishes to put before the court by way of section 47 of the Adoption and Children Act 2002. For all those reasons, therefore, I am not satisfied that the test for reopening this matter is met. I am not satisfied that the new evidence in essence will lead to a different outcome and therefore, for the reasons I have outlined, the application is dismissed.
Sara Chalk is a barrister at No18 Chambers.
