![]() The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. Meanwhile the children are living with M and contact between F2 and C and D is not taking place. Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A. His daughter with another woman, D, made an allegation of sexual assault against him in 2022, and the Local Authority issued care proceedings. He was found not guilty in the Crown Court (2020) and no findings were made in the private law case against him (2021) There had been a previous set of private law proceedings involving the Father and a child A, his stepdaughter, who had made allegations of sexual assault against him. Re J (Children: Reopening Findings of Fact) 2023 ![]() If you are wondering which particular High Court Judge decided Re RL, you might well be able to make an educated guess. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at, cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.Ĥ9. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW EWCA Civ 1054, WLR(D) 425. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. ![]() A judge’s main responsibility is to decide the case in hand. Probably the most important thing to arise from the judgment is this:-Ĥ8. (and yes, this is not the first time this blog has written about that sort of thing in the last few years, and also yes, there’s going to be another one on exactly the same point later today) This is a Court of Appeal decision, which tidies up an area of law where the Court of Appeal has given a decision and then the High Court has ‘clarified’ and amended the test set out. ![]()
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