SQ25P00020 - [2025] EWHC 2135 (Fam)

The law in relation to re-opening findings of fact is found in two Court of Appeal decisions, Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. Those authorities endorse the decisions of Hale J (as she then was) in Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29 and Munby P (as he then was) in Re Z (Children) (Care Proceedings: Review of Findings)[2014] EWFC 9.

The ‘test’ to be applied was recently summarised by Peter Jackson LJ in J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465:

“6.

In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.

7.

In relation to the first stage: (i) 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; (ii) it should weigh up all relevant matters, including 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; and (iii) 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 a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.”

Procedurally this case is somewhat complicated because the F made his application to re-open when the s.91(14) was in place, and therefore he needs permission to bring the application. He submits that the fact of his diagnosis means that the Court should reconsider the case, and that justifies the grant of permission.

In my view the correct approach is to apply the tests in Re J as to whether there is any reasonable prospect of a court reaching a different decision. That determination will then dictate whether permission to bring proceedings should be granted. I will then go on to consider the M’s application to make a further s.91(14) order.