Judgment – Alteration
Re L and B (Children): Supreme Court: 20 February 2013
The proceedings concerned a sister, S, and a brother, T, who were two and six years old respectively. In September 2010, S was taken to hospital by the mother and found to have sustained a number of fractures to her ribs, clavicle and long bones, as well as bruising. Care proceedings were commenced. S was placed in foster care, and T stayed with the maternal grandparents. A fact-finding hearing took place to determine who had been responsible for S’s injuries.
It became common ground that either the mother or the father was responsible for the injuries. In December 2011, the judge gave an oral judgment, in which she concluded that the father had been responsible for S’s injuries. The judge's order was not formally sealed until 28 February 2012. The judge stated that a perfected judgment would be distributed in February 2012, and would be treated as being handed down then. On 15 February 2012, the judge handed down the perfected judgment.
However, the perfected judgment reached a different conclusion to the oral judgment, holding that it was not possible to determine which of the parents had been responsible for S’s injuries. The mother appealed. The Court of Appeal allowed the mother’s appeal and ordered that the findings of December 2011 should stand with regard to the perpetration of S’s injuries. The father appealed to the Supreme Court.
The father contended that the judge had been entitled to change her mind, and that the February judgment should be restored. Two questions arose: (i) whether the judge had had the jurisdiction to change her mind; and (ii) whether such a jurisdiction had existed, but ought not to have been exercised. The mother contended that, even if the judge had been entitled to change her mind, she had not been entitled to proceed in the way that she had done, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. The Court went on to consider what would have been the case had the order of the court been sealed when the judge had delivered her second judgment. Consideration was given to the CPR and the Family Procedure Rules. The appeal would be allowed.
(1) It was established principle that a judge was entitled to reverse his decision at any time before his order was drawn up and perfected (see  of the judgment). The judge had had the power to change her mind. The question was whether she ought to have exercised it in the instant case (see  of the judgment). Australian Direct Steam Navigation Co, Re, Miller's Case (1876) 5 Ch D 70 considered; St Nazaire Co, Re (1879) 41 LT 110 considered; Suffield and Watts, Re, ex p Brown [1886-90] All ER Rep 276 considered; Millensted v Grosvenor House (Park Lane) Ltd  1 All ER 736 considered.
(2) No judge ought to be required to decide the future placement of a child on what they considered to be a false basis (see  of the judgment).
In the instant case, the parties had not irretrievably changed their position as a result of the judgment of December 2011. S’s placement had not been determined, and she had remained where she had been. Although finality was important, the final judgment had yet to have been made. It was difficult to see what further submissions could have been made in the instant case, other than to re-iterate what had already been said (see [30 of the judgment). The February judgment would be restored (see  of the judgment).
(3) Both the CPR and the Family Procedure Rules made it clear that the court’s wide case management powers included the power to vary or revoke their previous case management orders. That power had to be exercised judicially and not capriciously, in accordance with the over-riding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved (see ,  of the judgment).
Regarding a situation where the judge changed his mind after his earlier order had been sealed, in case proceedings, the fact-finding hearing was merely part of the process of trying the case. The judge had to be able to keep an open mind until the final decision was made, at least if fresh evidence or further development indicated that an earlier decision was wrong. It would be detrimental to the interests of all concerned, by especially to the interests of the children, if the only way to correct an error was on appeal. Where, however, the later development was the result of a change of mind, the arguments were finely balanced, not least because the difference between a change of circumstances and a change of mind might not be clear-cut (see ,  of the judgment).
The arguments were so finely balanced that it was not possible to express even a provisional view upon the question. The preferable solution would be to avoid the situation arising in the first place (see  of the judgment). English v Emery Reimbold & Strick Ltd  All ER (D) 302 (Apr) applied; B (a minor) (split hearings: jurisdiction), Re  1 FCR 297 considered; M (children: determination of responsibility for injuries), Re  All ER (D) 171 (Mar) considered; B (children) (sexual abuse: standard of proof), Re  All ER (D) 134 (Jun) considered; S-B (children) (perpetrator: non-accidental injury), Re  All ER (D) 160 (Dec) considered; Re A (children) (fact-finding: inadequate reasons)  EWCA Civ 1205 considered. Judgment of Court of Appeal, Civil Division  All ER (D) 202 (Jul) reversed.
Gwynneth Knowles AC and Sarah Kilvington (instructed by Russell and Russell Solicitors) for the father; Charles Geekie QC and Rachael Banks (instructed by CMA Law) for the mother.