Our Baljit Bains, considers the Court of Appeal judgment

The case concerned four children: A, B, C and D.  F1 was the father of A and B; and F2 was the father of C and D. In 2019 A alleged that F2 had sexually assaulted her. Whilst M and F2 remained in a relationship M defended F2 and disbelieved her daughter A.  When M and F2 separated later in the year M supported A’s allegations.

Private law proceedings between F2 and M were issued in 2021 concerning C and D. A was joined to the proceedings but, discharged as a party on F2’s application, having decided she did not wish to give evidence. The Family Court hence made no finding against F2 on A’s allegation and contact was ordered between F2 and his children C and D.

C refused contact but D’s contact progressed to overnight stays.  In 2022, D alleged that she had been sexually abused by F2.  The LA issued care proceedings in April 2022. The children were all living with M at the time.

The LA asserted that threshold was 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.  HHJ Skellorn KC allowed the LA’s application to reopen the fact finding in respect of A’s allegation.

F2 appealed and pleaded five grounds.  The fifth ground asserted that the judge was wrong to reopen A’s allegations where no “new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before “, following Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13.

Before the Court of Appeal, F2 accepted the judge had identified the law correctly but argued she had not correctly applied it.  F2 relied upon Re RL to emphasise the importance of there being something new for the court to consider, as required in Re E and Re W.  F2’s principal argument was that the new information required to justify a reopening had to relate specifically to A’s allegation.  D’s allegation was not new information in relation to A’s allegation; its impact on A, in that she was now willing to give evidence, was not sufficient.

The Court of Appeal determined that the extent of the investigation necessary to achieve a ‘soundly based welfare outcome’ was a matter for the court’s judgement, applying the correct legal principles and considering all the circumstances. The scope of the jurisdiction is not confined to cases where the new evidence or information relates exclusively to the original finding.

The grounds were rejected and the appeal dismissed. The judgement in its entirety can be read here.

If you need help with a case such as this, please contact Mavis on 020 8885 7986 for an appointment with a member of the family team.

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