Re L and B (Children) [2013] UKSC 8

A circuit judge in care proceedings reversed her fact-finding that the father injured the baby, instead finding either parent could be responsible, before her earlier order was sealed. The Supreme Court allowed the father's appeal, holding judges may change their minds pre-perfection, applying the overriding objective rather than any exceptionality test.

Facts

The case concerned care proceedings relating to a baby girl (“Susan”, born 8 July 2010) and her elder half-brother (“Terry”). In September 2010 Susan was found to have multiple fractures and bruising. It was common ground that the injuries were non-accidental and that the only possible perpetrators were her mother and father.

Judge Penna conducted a protracted fact-finding hearing, interrupted by the mother’s serious mental illness (the Official Solicitor was ultimately appointed as her litigation friend). The mother gave only limited evidence and was never cross-examined; the father gave evidence over two days. The local authority submitted that no sole perpetrator could be identified; each parent blamed the other.

On 15 December 2011 the judge gave a short oral judgment (later transcribed under the heading “Preliminary Outline Judgment”), running to 15 paragraphs. It did not address the nature or timing of the injuries but concluded that the father had “snapped” under intolerable pressure and was the perpetrator. Counsel for the father promptly asked, in accordance with In re A (Children) (Judgment: Adequacy of Reasoning) (Practice Note) [2011] EWCA Civ 1205, [2012] 1 WLR 595, that a number of matters be addressed in an addendum, including the mother’s opportunity to injure Susan and inconsistencies in her account.

On 15 February 2012 the judge distributed a “perfected judgment” which expanded the findings but reversed the key conclusion, holding that she could not determine on the balance of probabilities which parent was responsible. Unknown to the parties, the December order had not been sealed by the Manchester County Court until 28 February 2012.

The mother appealed. The Court of Appeal, by a majority (Thorpe LJ and Sir Stephen Sedley; Rimer LJ dissenting), allowed her appeal, quashed the February judgment and ordered that the December findings stand. The father appealed to the Supreme Court, supported by the local authority, the children’s guardian and the maternal grandparents.

Issues

Lady Hale identified the central issue at the outset: “whether and in what circumstances a judge who has announced her decision is entitled to change her mind”, and the subsidiary question whether the principles differ in the context of fact-finding hearings in care proceedings. Three questions arose:

• Did the judge have jurisdiction to change her mind before the order was sealed?
• If so, was she entitled to exercise that power on these facts, and was she obliged to invite further submissions first?
• (Raised but not decided) Would the position have been different had the December order already been sealed?

Arguments

The father argued that the judge was entitled to change her mind and that the February judgment should be restored. Mr Charles Geekie QC for the mother argued that, even if the judge had jurisdiction, she was not entitled to proceed as she did without giving notice of her intention and a further opportunity for submissions. He also argued, on the hypothetical sealed-order question, that sealing could not invariably be the cut-off point: a judge asked to elaborate reasons under English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605, [2002] 1 WLR 2409 who realises his decision was wrong should be able to say so. No party sought remittal, given the passage of time; the judge had recused herself.

Judgment

Lady Hale gave the sole judgment, with Lord Neuberger, Lord Kerr, Lord Wilson and Lord Sumption agreeing. Because the final welfare hearing was imminent and section 1(2) of the Children Act 1989 requires regard to the prejudicial effect of delay, the court announced its decision at the end of the hearing, with reasons to follow.

Jurisdiction

“It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.”

Lady Hale traced the rule from In re St Nazaire Company (1879) 12 Ch D 88 (no general power after the Judicature Acts to review one’s own orders, the appellate jurisdiction having passed to the Court of Appeal) and In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693, where Fry LJ observed that the judge’s jurisdiction ends once the order is completed; the point was established by Millensted v Grosvenor House (Park Lane) Ld [1937] 1 KB 717. Under CPR r 40.2(2)(b) an order is perfected by sealing. Since the December order was not sealed until 28 February 2012, the judge plainly had jurisdiction; the real question was whether she should have exercised it.

The proper test

The court reviewed the “exceptional circumstances” gloss introduced in In re Barrell Enterprises [1973] 1 WLR 19, the earlier, looser approach in In re Harrison’s Share Under a Settlement [1955] Ch 260 (control “exercised judicially and not capriciously”), and subsequent criticism in Pittalis v Sherefettin [1986] 1 QB 868, Stewart v Engel [2000] EWCA Civ 362, [2000] 1 WLR 2268 (Clarke LJ dissenting on this point), Cie Noga D’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513 and Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257, noting Wilson LJ’s analysis in Paulin v Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057.

“This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected.”

The overriding objective of dealing with the case justly governs. Whether a party has acted on the decision to its detriment is a relevant factor; the examples given by Neuberger J in In re Blenheim Leisure (Restaurants) Ltd (No 3) are only examples. Lady Hale concluded: “A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.”

Application

The Court of Appeal majority had applied an exceptionality test which was not the correct approach. No one had irretrievably changed position: the child’s placement had yet to be decided. Agreeing with Rimer LJ’s dissent, Lady Hale held 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”, noting that section 1(1) of the Children Act 1989 must govern the final decision even though it does not apply to procedural decisions along the way.

On fairness, the discretion must be exercised judicially, which may require inviting submissions, and “[t]he longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise”. Here, given the volume of material and full written submissions, “[i]t is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

The sealed-order question

Lady Hale examined, obiter, whether sealing should be decisive in care cases, noting that findings at a fact-finding hearing are not set in stone (In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461; Re S-B (Children) [2009] UKSC 17, [2010] 1 AC 678) and that CPR r 3.1(7) and FPR r 4.1(6) permit variation or revocation of case management orders. Against that stood the destabilising effect of allowing a bare judicial change of mind, and the risk of a judge being “invited to hear an appeal against himself”. The court expressly declined to decide: “The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it.”

Concluding comment

“The best safeguard against having to do so is a fully and properly reasoned judgment in the first place.”

Lady Hale criticised the inadequacy of the December judgment and observed that “[o]ne 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.”

Implications

The decision authoritatively removes the Barrell “exceptional circumstances” threshold as a binding constraint: a judge may revisit a decision before the order is sealed, the guiding criterion being the overriding objective of dealing justly with the case, informed by detriment, reliance and finality. A considered change of mind may suffice.

For family practitioners, it confirms that fact-finding judgments in care proceedings are interlocutory, and that welfare decisions should not be built on a factual basis the judge believes to be false. It also reinforces the advocate’s duty, per In re A, to seek clarification of deficient reasoning, and underlines the practical importance of properly reasoned first-instance judgments — the court treating the judge’s haste as “a false economy”.

Important limits apply. The ruling concerns unsealed orders only; the Supreme Court deliberately left open whether, and how, a judge may change her mind after sealing, including whether the case management powers to vary or revoke can accommodate a pure change of mind. The court’s preferred solution was to avoid the situation arising at all. The decision also does not license parties to press judges to reconsider at will.

Verdict: The father’s appeal was allowed. The Supreme Court announced its decision at the end of the hearing on 21 January 2013, with reasons given on 20 February 2013. The Court of Appeal’s order (which had restored the findings of 15 December 2011 and quashed the judgment of 15 February 2012) was set aside; as no party had appealed the judge’s decision of 15 February 2012, the welfare hearing was to proceed on the basis of the findings in that judgment.

Source: Re L and B (Children) [2013] UKSC 8