Case Comment: Re L and B (Children)  UKSC 8
05 Tuesday Mar 2013
This case concerned a judge’s power to reverse his/her decision before an order has been perfected. The judge at first instance gave an oral judgment in which she found that the perpetrator of non-accidental injuries to a child was the father. Two months later, however, she handed down a written judgment in which she held that it was not possible to identify the perpetrators.
It is therefore somewhat ironic that the Supreme Court also chose – unusually – to deliver its judgment first orally, at the conclusion of the hearing on 21st January 2013, and then in written form on 20th February 2013. However, unlike at first instance, the Supreme Court’s mind was not for turning.
On 21st September 2010, “Susan” (then aged less than two months), was taken to hospital by her mother. She was discovered to have several fractures to her ribs, clavicle, and long bones, as well as bruising to the face and head. The Local Authority commenced care proceedings in respect of both Susan and her elder half-brother, “Terry”.
The case proceeded to a fact-finding hearing aimed at determining the identity of the perpetrators. On 15th December 2011, HHJ Penna sitting at Manchester County Court gave an oral judgment in which she found that the father had caused the injuries. However, unbeknownst to anyone at the time, the order recording this was not formally sealed until 28th February 2012.
Two months later, on 15th February 2012, the judge gave a written judgment which held that it was not possible to identify the perpetrator and it could have been either the father or the mother.
Could the judge reverse her decision?
The first subject to be decided was “whether … a judge who has announced her decision is entitled to change her mind” (para 1).
This did not trouble their Lordships unduly: indeed, the implication was that this was almost a matter of trite law. Lady Hale, who gave the judgment of the Court, stated that “it has long been the law that a judge is entitled to reverse his decision at any time before the order is drawn up and perfected” (para 16).
Should the judge have reversed her decision?
The real issue, therefore, was whether this power should have been exercised. The Court of Appeal has held in In re Barrell Enterprises  1 WLR 19 that the jurisdiction should only be used “in the most exceptional circumstances”. However, the Supreme Court rejected any such formal limitation, holding that every case would depend upon its own particular circumstances. Relevant factors in deciding whether or not to reverse a decision would be, on the one hand, the overriding objective of dealing with cases justly and, on the other, whether or not any party has acted to his detriment on the decision, and especially whether or not they might have been expected to do so.
In this case, the judge had been right to reverse the decision once her mind had changed about the evidence. It was doubtful whether any party had irreversibly changed its position as a result of the first, oral, judgment. Susan’s placement had not yet been decided and she had not moved from her foster carers. Although finality was of importance, the final decision as to Susan and Terry’s home had not yet been taken. It was not right for a judge to have to decide their future“upon what he or she believes to be a false basis” (para 29). Although in other circumstances the judge should invite further submissions if a change of mind was being contemplated, in this particular context “it is difficult to see what any further submissions could have done” (para 30).
What if the order had been sealed?
The Court went on to consider what would be the situation if the order had, in fact, been perfected. It was held that the judge would still have the power to reverse his/her decision.
Firstly, this was only the first, fact-finding stage of a two-part determination. It was well-established that findings made at this stage “are not set in stone” (In Re A (Children: Judgment: Adequacy of Reasoning)  EWCA Civ 1205, para 21). It would be contrary to the paramount principle of having regard to a child’s welfare if the judge was not able to keep an open mind until the final decision was made.
Secondly, the procedural position supported such a conclusion. An order made at the end of a fact-finding hearing is an interlocutory order. Both the Civil Procedure Rules and the Family Procedure Rules make clear that the court’s case management powers include the power to vary or revoke previous case management orders.
Such a power should of course be exercised “judicially, not capriciously” (Re Harrison’s Share Under a Settlement  Ch 260, 284). Where the reason for reversing a decision is a judicial change of mind, then the arguments as to whether to vary the decision “are finely balanced” (para 39). Factors in favour are the importance of the decision for the child and its family; the problems with requiring a judge to conduct welfare proceedings “on the basis of a false substratum of fact” (para 40); and the fact that allowing the judge to change its mind may avoid the delay of an appeal. Factors against are the disarray into which proceedings would be thrown were a judge “entitled simply to change his mind” (para 43) and the fact that parties may seek to invite the judge to change his mind and, in effect, to hear an appeal against himself.
As the point did not arise in this case and was not fully argued, the Court declined to decide the issue.
This case firmly re-establishes the rule that a judge may change his decision at any point until the order is perfected. It is now also clear that there is no requirement of “exceptional circumstances” before the power can be exercised. The discretion is not, of course, entirely untrammeled: judges must have regard to the overriding objective.
Further, in a phrase quoted three times in the judgment, judges must act “judicially and not capriciously”. It is difficult, however, to avoid the impression that an element of caprice was present in this case: caprice not of judicial determination but of circumstance. Had the order not been mistakenly left unsealed until 28th February 2012, then the outcome may have been different. Although it is made clear that the judge would still have had the power to change her decision even if the order had been perfected, the fact that the Court declined to determine whether or not she would have been right to do so suggests that the power to change a decision before the order is perfected is not the same as the power to reverse an order afterwards.
The issues in this case are said to be ones which “could obviously arise in any civil or family proceedings” (para 1). It will be interesting to see how the principles established here are applied in cases which do not concern issues of child welfare. Where the immediate safety at child is not at stake, where parents do not stand to lose their children, how will the balance between justice and finality be struck?