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Dawn Tighe

Application for Re-Hearing Under the Inherent Jurisdiction

RE X [A child ] 2016 EWHC 1342 [Fam]

This case deals with  the issue of reconsideration of findings of fact made against birth parents.

The application for reconsideration was brought by the Local Authority.

The application was considered under the inherent jurisdiction  and was described by the President as “ most unusual circumstances”.

An adoption order had already been made.

 

FACTS of the case

IN  2013 a Circuit Judge found X`s birth parents to be responsible for  his injuries. At a welfare hearing the same judge made Care and Placement orders and X was then placed for adoption with prospective adopters. They applied to adopt X  and this was granted in 2014.

The birth parents had applied for permission to oppose the adoption application which was refused. At this time a criminal investigation was underway but the trial had not taken place.

At the criminal trial in 2015 new expert evidence came to light and they were acquitted on the judge`s direction on the basis there was no case to answer.  

Following this the parents lodged an application for permission to appeal out of time against the finding of fact hearing on the basis that new evidence was available  which satisfied the case of Ladd V Marshall  1954 1 WLR 1489.  They did not apply to appeal the placement order but said they intended to apply to revoke the adoption order if successful in overturning the findings of fact.

 

At the permission hearing in the Court of Appeal it was suggested that the best approach may be for the LA to apply under the court`s inherent jurisdiction for re-consideration  of the findings of fact in 2013.      

The Court of Appeal adjourned the application and directed the LA to notify the parties of  whether it   intended  to make an  application and to notify the adoptive parents.

The LA made the application under the inherent jurisdiction and notified the adoptive parents and birth parents. All parties agreed the findings should be reconsidered.  

The Guardian submitted that it was in X`s best interests for X to know the truth about his parents.  

Munby P directed a rehearing of the finding of fact hearing but stressed that even if the birth parents were successful in the sense that the finding of fact were overturned, it was by no means certain that they would be successful in any application to revoke the adoption order.

 

APPROACH TAKEN BY THE COURT TO APPLICATION BY THE LOCAL AUTHORITY UNDER THE INHERENT JURISDICTION IN THE HIGH COURT.

 

The application under the inherent jurisdiction in the High Court was considered by Munby P.

At Paragraph 13 “it will be appreciated that in  some of its aspects  this case is uncomfortably reminiscent of the Webster litigation Re Brandon Webster 2007 EWHC549 [Fam] and Webster V Norfolk County Council 2009 EWCA Civ 59. In other aspects this case is uncomfortably reminiscent of Re C 2013 EWCA Civ 431″.

 

At Paragraph 16  “The case put forward by the parents is simple and compelling. They have been, they say, just like the parents in  Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge`s findings being held against them in the future.”

Paragraph 17. “The Guardian supports their desire for a rehearing for different reasons, who submits that it is in X`s best interests to know the truth about his birth parents and about what did or did not happen to him”.

Paragraph 18 “I agree  with  the Guardian that X has a right to know the truth about his birth parents

This has long been recognised in our domestic law. In  S v Mc C and  M,  W v W Lord Hodson in the context of disputed  paternity, said that “The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests  of children can be shown to be best served by the suppression of truth”.

Paragraph 19 “But this principle is not confined to issues of paternity,  as it is clear from the Srasbourg law, which recognises it as an ingredient of the rights protected by Article 8 Gaskin V UL 1990 12 EHRR 36. It is also recognised in Articles 7 and 8 of the United Nations Convention on the rights of the Child.

Paragraph 20 “The wide impact of the principle that, from the child`s perspective,  their interests are best served by the ascertainment of the truth,  whatever that truth may be,  is illustrated by Re Z 2003EWHC 61 [Fam] disclosure.  “the children have a direct and important interest in ensuring that the truth,  whatever it may be,  comes out. As they grow older they will need to know, if this is the case, and however painful it may be, in this as in other respects better for the children that the truth whatever it may be comes out”.

Paragraph 21 “There is also a wider and very important public interest which in my judgement, is here at play. I repeat what I said in Re J [reporting restriction ]2013 EWHC Parags 29 to 30.

Paragraph 29 “We strive to avoid miscarriages of justice,  but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone in the family justice system, the latter as a stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will  very probably be irremediable. W v Oldham MBC 2005 EWCA Civ 1247. Webster V Norfolk CC 2009 EWCA Civ 59. Of course as Wall LJ said in Webster para 197 “the system provides a remedy. It requires determined lawyers and determined parties.

“So I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. We must have humility to recognise and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing future miscarriages of justice”.

Paragraph 30 In Re B, almost 10 years ago I said  “We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential

“I remain of this view.  The passage of the years has done nothing to diminish the point,  if anything quite the contrary”.

Paragraph  22 “In my judgement  and giving appropriate weight to the terrible burden placed on the adoptive parents, the best interests of X, and the public interest all point in the same direction, there must be a reopening of the fact finding hearing, so that the facts whatever they turn out to be, can be ascertained in light of all the evidence which is now available”.

 

CONSIDERATION OF THE THREE STAGE TEST

Paragraph  23.  In Re Z 2014 EWFC  9.

“I set out the formulation of the 3 stage test approach.  

At the first stage  the court is concerned to know whether there is any new evidence casting doubt upon the accuracy of the original findings. There must be some real reason to believe that the earlier findings require revisiting, mere speculation or hope is not enough, there must be solid grounds for challenge. It is accepted that the test is met,  I agree. Given that the test is met, justice, and I stress, justice from every point of view, demands in my judgement, that there be a rehearing.”

In relation to the second stage ,  what I said in Re Z paragraph 34 that “so far as the second stage is concerned,  the ambit of the  review,  I doubt that one can sensibly be prescriptive.  Much will turn on the forensic context and the circumstances of the particular case “. “In this case nothing short of a full rehearing will suffice”.

 

COMMENT

This is  a recent case dealing with an application for reconsideration of the findings of fact made under the inherent jurisdiction of the High Court. All parties including the adopters of X were in agreement that there should be a rehearing. Munby P agreed with this and said nothing short of a full rehearing would suffice. However it was stressed that even if the findings were overturned it was by no means certain that they would succeed in an application  to revoke the adoption order. Munby P  highlighting the right of X to know the truth about what had happened to him  and the importance of the role of the media in such cases.

Contact Dawn’s clerks

Claudine Cooper on 0113 202 8604

Paul Foster on 0113 213 5209