LAW REPORT 29 June 1995: Family courts can question earlier findings

Re S (minors); Court of Appeal (Lord Justice Waite and Lord Justice Schiemann) 27 June 1995

On an application under section 39 of the Children Act 1989 to discharge a care order, the court may, in rare cases, question the soundness of findings reached at earlier stages in the proceedings.

The Court of Appeal dismissed a mother's application for an extension of time to appeal.

In 1992, Judge Lewis Bowen, relying heavily on the evidence of three social workers, committed three children to the care of the council, having found that one child had been sexually abused by a friend of their mother and that the mother knew of the abuse but was unable or unwilling to acknowledge it. In 1993, after the mother's friend and other defendants were convicted of offences of sexual abuse, care proceedings involving the children of the other defendants were heard by Mr Justice Connell, who was not in general prepared to hold that the children were at significant risk and made orders for a return home. He found that the three social workers had been insufficiently cautious and over-ready to believe all that the children had alleged.

The mother, who continued to insist that she was unaware of any sexual abuse, had had her contact with the children cut to a nominal level. She wished to have Judge Lewis Bowen's findings set aside and applied for an extension of time to appeal against Judge Lewis Bowen's order.

Ian Karsten QC and Colleen McCann (Keith Thomas & Partners, Pontypridd) for the mother; John Mitchell (Dyfed County Council) for the council; Anna Pauffley QC (Official Solicitor) for the guardian ad litem.

Mr Justice Waite said that section 39 allowed a court to discharge a care order on the application of, among others, a parent. The issue had to be determined in accordance with the section 1 which made the child's welfare paramount, having regard to factors including under section 1(3)(e) any harm which the child had suffered or was at risk of suffering.

In family proceedings the court had power to review findings reached at earlier stages. However, awareness of dangers such as the disruption if past disputes were re-opened and the prejudice to the child's welfare from any delay in reaching a final determination about his upbringing would prompt the court to allow use of the jurisdiction to review antecedent findings of fact only in very limited instances.

A court hearing an application under section 39 to discharge a care order under section 31 was bound by section 1(3)(e) to have regard to any harm which the child had suffered or was at risk of suffering. The risk to be considered was the risk at the date of the discharge hearing. In the great majority of discharge applications the court was likely to be concerned with evidence of recent harm and appraisal of current risk, in which conclusions reached by an earlier tribunal as to past harm or risk would be of marginal relevance and historical interest only.

There were liable, nevertheless, to be instances in which the interest which every child had in seeing that justice was done to the claims of a natural parent would require the court hearing a discharge application to question, in the light of the evidence before it, not merely the relevance but also the soundness of antecedent findings reached by an earlier tribunal.

Such instances were bound to be extremely rare. The willingness of the family jurisdiction to relax the ordinary rules of issue estoppel did not originate from laxity or benevolence but from recognition that where children were concerned there was liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child was not to be trammelled by the arbitrary imposition of procedural rules. In the general run of cases the family courts would be alert to see that no one was allowed to litigate afresh issues that had already been determined.

Therefore if the mother applied for a discharge the judge would have a complete discretion as to whether and to what extent the issue decided by Judge Lewis Bowen should be examined afresh. The judge hearing the discharge application would bring a fresh and independent mind to the mother's claims to be restored to regular contact. Her application for an extension of time was refused.

Lord Justice Schiemann agreed.

Ying Hui Tan, Barrister