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Family analysis: When, and in what circumstances, is it proper for a judge to vary their decision? Katie Lowe, senior associate at Slater and Gordon LLP, examines the approach taken by the Court of Appeal in Re K-L (Children) (Fact-finding hearing: subsequent judgment reversing earlier findings).
Re K-L (Children) (Fact-finding hearing: subsequent judgment reversing earlier findings)  EWCA Civ 992,  All ER (D) 264 (Oct)
A judge in the course of care proceedings had given three judgments. In the third decision, the judge reversed her earlier finding that the father had sexually abused one of his children. The mother appealed. The Court of Appeal allowed the appeal on the basis that the judge had not given a satisfactory explanation for her changed decision, ie she had not said that she had reflected further on the evidence, and come to the conclusion that her initial decision had been wrong, and the explanation she had given did not stand up to examination. The judge had cut and pasted a large part of the guardian's skeleton argument into her judgment and that was not a proper way to prepare a judgment--a judge should examine the parties' competing submissions and explain why they preferred one argument to another. Further, the second judgment given by the judge had contained a number of factual errors which the judge had stated, in her third judgment, that she had corrected when she had not. The history of the case was such that no one could have any confidence in the judge's findings contained in the third judgment.
How have the courts approached a judge deciding to alter their decision?
The Barrell jurisdiction is that, after a judgment has been delivered, either orally or by handing down, the judge may, in an appropriate case, alter the judgment at any time before an order giving effect to the judgment has been perfected, named after the decision in In Re Barrell Enterprises  3 All ER 631. However, a judge should only exercise this power if there are strong reasons for doing so, as the successful party ought to be able to assume, save in the most exceptional circumstances, that the judgment is valid and effective.
However, there have been a number of cases in recent years where the 'exceptional circumstances' limitation has been disputed, the most recent being the Court of Appeal decision in Re K-L (Children) (Fact-finding hearing: subsequent judgment reversing earlier findings)  EWCA Civ 992,  All ER (D) 264 (Oct).
What was the background to Re K-L?
The case concerned allegations of sexual and physical abuse of four children by their father. At the end of a fact-finding hearing to determine the allegations the judge delivered a short oral judgment in which she said 'I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time' but went on to set out her conclusions and make findings of fact that she had found there to be proven allegations of abuse (judgment one).
Following the hearing the judge worked on her written judgment and circulated a further version (judgment two) and rejected the allegations of sexual abuse by the father. The mother's counsel sent an email to the judge asking why she had changed her decision. The judge was then granted indefinite compassionate leave but circulated a revised version of her judgment in response to the mother's counsel email (judgment three). The findings in judgment three remained the same as judgment two. Judgments two and three remained in draft and never formally handed down.
Counsel for the mother confirmed that the mother intended to appeal against judgment three. A deputy circuit judge (dealing with the case in the judge's absence) decided that he could not make substantive progress with the case and adjourned the proceedings pending the outcome of the proposed appeal. The deputy judge made two separate orders, one to reflect judgment one, and a second to explain the decision to adjourn the proceedings.
The mother appealed to the Court of Appeal against judgment three on the grounds summarised at para  of the judgment as being:
It was the mother's case that the findings in judgment three were under appeal, even though those findings were not embodied in any formal order. The father said that judgment three superseded the order (reflecting judgment one). The order could not stand in light of the judge's later change of mind.
What were the issues before the court?
Largely, whether the Court of Appeal had jurisdiction in relation to the issues raised on appeal, and what the order under appeal was.
What did the Court of Appeal decide?
The traditional rule that appeals only lie against orders, and not against judgments or findings contained in judgments, could not 'survive unaltered in the context of proceedings under the Children Act 1989, where preliminary fact-finding hearings are common practice' (para ). The court treated the findings of fact in the third judgment as the effective outcome of the fact-finding hearing and proceeded to deal with the mother's appeal on that basis.
However, the court concluded that 'no one can have any confidence in the judge's findings contained in judgment 3' (para ) and therefore made an order that the case to be remitted and reheard on all issues.
Ryder LJ commented that the judge had clearly intended to make findings of sexual abuse against the father in judgment one, but had changed her mind, but then as she did not accept that she had done so, as a consequence that change of mind was not reasoned.
What are the practical implications of this decision?
In Re K-L Ryder LJ considered that the case did not involve the type of circumstances described by the Supreme Court in Re L-B (children) (care proceedings: power to revise judgment)  UKSC 8,  All ER (D) 241 (Feb). In Re L-B the judge at first instance had delivered a judgment orally, headed 'preliminary outline judgment approved by the court', then subsequently handed down a written 'perfected judgment' which departed substantially from the conclusions reached in the earlier oral judgment.
The mother in Re L-B appealed and the Court of Appeal made an order that the findings of the first judgment should stand as the findings of fact. The father then appealed and the Supreme Court held that it was a matter of established law that judges have jurisdiction to reverse their decisions at any time before the order is drawn up and perfected, and the exercise of that jurisdiction is not subject to exceptional circumstances--judges should be guided by the overriding objective to deal with the case justly.
In Re L-B Baroness Hale concluded that (para ):
'This court is not bound by Re Barrell Enterprises 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. I would agree with [Clarke LJ's dissenting judgment] in Stewart v Engel  3 All ER 518 at 531,  1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly...A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.'
The Court of Appeal's decision in Re K-L raises the question of what would have happened had the order been sealed. The judgment refers to the Civil Procedure Rules 1998 and the Family Procedure Rules 2010, SI 2010/2955 both of which make it clear that the court has the power to vary or revoke a previous case management order, either on an application, or of the court's own motion. As to whether it is proper to vary the order, the court (at para ) concluded that 'that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised judicially and not capriciously', ie it must be exercised in accordance with the overriding objective enabling the court to deal with cases justly, having regard to any welfare issues involved. The Court of Appeal also suggested that children cases may be different from other civil proceedings because of the consequences for the child and the family.
In Re L-B Lady Hale (at para ) highlighted the principle that, following Robinson v Fernsby  EWCA Civ 1820,  All ER (D) 414 (Dec) at para , '...judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one's mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place'.
Interviewed by Geraldine Morris.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.
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