When is a final order ‘final’ in the Family Court?
Judgment was handed down by the Court of Appeal this week in Re U (Children)  EWCA Civ 334, a long-running care case in which Oliver Millington has been representing the local authority. The case concerned allegations (amongst others) that the father had sexually abused the oldest of his 5 children (who was not subject to the care proceedings) and had inflicted serious physical abuse on all members of the household (including the children, their mother and their severely demented paternal grandmother).
Following a lengthy fact-finding hearing before HHJ Wilding in December 2013 at which 2 of the children gave evidence against their parents, the Court made all the findings sought by the local authority. The case concluded in July 2014 with care orders for the older children and care and placement orders for the 2 youngest children (twins aged 2 at the time).
The father was prosecuted in respect of the sexual abuse allegations and stood trial in September 2014. Following his acquittal in the Crown Court, the father sought a re-hearing of the care case pursuant to section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (as inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1). The basis of the father’s application was that the evidence of the complainant and another prosecution witness in the criminal trial materially undermined the evidence both witnesses had given in the fact-finding hearing.
Under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (which came into force on 22 April 2014), the Family Court has the power to “vary, suspend, rescind or revive any order made by it”. How the Court should interpret this seemingly far-reaching provision was a moot point in the instant case: indeed the editor’s note on this section in the Family Court Practice 2014 records that, “At face value, s.31F(6) seems to undermine principles in relation to finality of judgments and orders: it remains to be seen how it is judicially interpreted”.
In October 2014 the case came back before HHJ Wilding to consider the father’s application for a re-hearing. The application was ultimately adjourned until December 2014 as the Court had failed to book an interpreter. In the interim the father was to obtain a transcript of the judge’s summing up in the criminal trial, which the father asserted would establish the discrepancies in the complainant’s evidence.
In the event, by the time the matter returned to court in December 2014 the father had been unable to obtain the transcript of the summing up in the criminal trial. Accordingly the father’s representatives sought a further adjournment, which was refused. HHJ Wilding then went on to hear the father’s substantive application: in the absence of any evidence to support the father’s assertions as to the evidence heard in the criminal trial, the judge dismissed the application for a re-hearing.
In considering the father’s application, HHJ Wilding made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings)  EWFC 9; 1WLR 95, a case heard by the President which pre-dates the application of section 31F(6) of the Matrimonial and Family Proceedings Act 1984. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others  EWHC 2885 (Fam) and adopted by the President in Re ZZ at  as:
…Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist
In considering the first stage the President said :
……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.
HHJ Wilding refused the father permission to appeal; however, at a hearing in January 2015 in the Court of Appeal before King LJ, permission to appeal was granted. The substantive appeal hearing was heard on 17 March 2015 by Moore-Bick LJ (Vice-President of the Court of Appeal, Civil Division), Lewison LJ and King LJ.
Oliver was successful in persuading the Court of Appeal to dismiss the father’s appeal on all grounds.
Ultimately the Court of Appeal in the instant case did not give any specific guidance as to the interpretation of section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (none was sought). However, the Court of Appeal in dismissing the appeal endorsed the lower court’s decision and agreed with HHJ Wilding’s analysis on the substantive application for a re-hearing.
So, for the time being at least, practitioners can safely assume that the 3-stage test as set out by Charles J in Birmingham City Council v H and adopted by the President in Re ZZ is still good law when considering an application in care proceedings to review earlier findings of fact. As to the application of section 31F(6) in relation to finality of orders more generally, it still remains to be seen how the Family Court will interpret this rather controversial provision.
The transcript of the judgment in Re U (Children)  EWCA Civ 334 can be found on Lawtel here.