Aug 14
The mother’s thee children, aged nine, four and two, were removed from her after the youngest child, then aged ten months, was found to have three cigarette burns on her arm. The mother, a smoker, gave differing accounts of how that had happened. In care proceedings brought by the local authority, the judge in the Family Court found the mother’s evidence unreliable and, determined that the injuries were either inflicted deliberately or caused by seriously culpable negligence and made care orders in respect of the children. Subsequently, a parallel criminal investigation concluded in a decision not to prosecute the mother in the light of evidence contained in the opinion of an expert commissioned by the police who considered that an account he understood the mother to have given represented a plausible accidental explanation of the burns. The mother, seeking to rely on that fresh evidence, sought to appeal against the decision of the judge out of time. On the appeal, the court having allowed the admission of the fresh evidence, an issue arose as to whether the trial judge rather than the Court of Appeal was the more suitable arbiter of the issues arising on the fresh evidence.
On the appeal—
Held, appeal dismissed and case remitted to trial judge to determine consequences of fresh evidence. Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 gave the Family Court (but not the High Court) the power to reconsider findings of fact made within the same set of proceedings or at any time thereafter. Although a finding of fact was not in a strict sense “an order”, it could comprise the determination of an issue that was crucial to the disposal of the proceedings and was susceptible to appeal. Such a finding of fact was integral to the order on which it was based and accordingly fell within the scope and purpose of the section. Since findings of fact had the potential to have long-standing consequences for children and families, and since heir effect was not only felt in the moment they were made, but persisted over time, there was no reason to limit the time within which the court could exercise its power to correct a flawed finding of fact that could have continuing legal or practical consequences. It followed that the Family Court had the statutory power to review its own decisions and that challenges to findings of fact on the basis of further evidence did not have to be by way of appeal only. Other things being equal, an application to the trial court was likely to be a more suitable course than an appeal. The trial court was likely to be in a better position than the appeal court to assess the true significance of the further evidence, its advantage being all the greater if the findings were relatively recent, and if the matter could be considered by the judge who made them, as should always be the case if possible. There could, however, be circumstances in which a return to the trial court would not be appropriate, and that would certainly be the case where the applicant was alleging an error by the trial judge, regardless of the further evidence. The procedure provided for in Fam PR Pt 18 was a convenient mechanism for the making of a freestanding application for a trial court to reconsider its findings of fact in the light of new evidence. In the present case, the fresh evidence having been admitted on the appeal, the better course for determining its consequences was by way of an application to the trial judge. Accordingly, the mother was treated as having made such an application, and the matter was directed to be listed before the trial judge for directions as soon as possible to enable him to consider whether, and if so, how his findings of fact should be reopened (paras 10–12, 17, 40–42, 45–46, 55, 56, 57).
Iain Alba (instructed by Keppe Rofer, Brecon) for the mother.
Hayley Daniel (instructed by Solicitor, Torfaen County Borough Council) for the local authority.
Rhian Jones (instructed by Caswell Jones Solicitors, Caerphilly) for the children by their guardian.
The father appeared in person.