Key Facts
- •Mother, S, sought to reopen a previous court order (BM21C00128) concerning care orders for her four children, made in March 2023.
- •The mother was unrepresented at the March 2023 hearing and did not attend.
- •The mother's application to reopen the case was based on the claim that she needed an intermediary due to cognitive difficulties, which were not addressed in the prior proceedings.
- •A subsequent intermediary assessment in new proceedings (BM23C5019C) involving a child born after the March 2023 hearing supported the need for an intermediary.
- •The court considered various legal principles related to reopening findings of fact, the role of intermediaries, and procedural fairness.
Legal Principles
Reopening findings of fact requires 'solid grounds' and a likelihood of a different outcome.
Re ZZ and Others (Care Proceedings: Retraction of Testimony) [2014] EWFC 9, Re T and J (Children) (Fact Finding Rehearing) [2020] EWCA Civ 1344, Re J (Children: Reopening Findings of Fact) [2023] EWCA 465
The court's power to vary or revoke orders under FPR 4.1(6) or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 has limitations, particularly regarding final orders.
Various cases including NBJ (Power to Set Aside a Return Order) [2017] EWHC 2752, Re D (Costs of Appeal: Application to Vary or Revoke Orders) [2023] EWHC 1244, Vodafone Group plc v IPCom GmbH and Co. KG [2023] EWCA 113
Appointment of an intermediary is not mandatory and should only be when necessary, considering other adaptations possible.
R on the application of OP v Secretary of State for Justice [2014] EWHC 1944, R v RT and Another [2020] EWCA Crim 155, West Northamptonshire Council v KA [2024] EWHC 79
Failure to comply with Part 3A procedures for vulnerable witnesses doesn't automatically lead to a rehearing; the focus is on whether the decision was unjust.
Re N (A Child) [2019] EWCA 1997, Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8, BF v LE [2023] EWHC 2009, SP v DM [2023] EWHC 2089
Permission to appeal requires a 'real prospect of success' or other compelling reasons.
Tanfern v Cameron-MacDonald [2001] 1 WLR 1311
Outcomes
Mother's application to reopen the findings was dismissed.
The court found the application speculative, lacking solid grounds for believing a different outcome would result. The mother's non-attendance at the hearing rendered the issue of an intermediary moot. The court also considered the potential impact on the adoption process for one of the children.
Permission to appeal was refused.
The court determined that the appeal lacked a real prospect of success, as the judge had not made any errors of law or fact.