UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Re L-B (Children), heard in the Supreme Court last week, concerns a judge’s power to change her decision where oral judgment has been given but no order has yet been perfected.

Background Facts

The case at first instance concerned the perpetrator of serious injuries to a child. A child, now aged 28 months old, was taken to hospital by the mother and was discovered to have numerous injuries, including fractures of the femur and tibia, four broken ribs, and bruising. The local authority commenced care proceedings and a fact-finding hearing was held to determine whether or not it was possible to identify either of the parents as the sole perpetrator of the injuries.

On 15^th December 2011, HHJ Penna of Manchester County Court gave an oral judgment in which she held that the injuries had been caused by the father. The local authority formulated a provisional care plan placing the child with her maternal grandparents.

However, on 15^th February 2012 the judge handed down a written judgment which had been not so much perfected as transformed. It stated that the judge had “reconsidered the matter carefully” and decided that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”. The judge now held that it was not possible to exclude the mother from the pool of possible perpetrators. In light of these findings, the Local Authority proposed to give care of the child to the father rather than the maternal grandparents.

The Court of Appeal Decision

The mother appealed to the Court of Appeal. At the hearing, the Court suggested to the mother that she submit that the judge was functus officio and, after having given judgment on 15^th December 2011, lacked the mandate to re-decide the case. However, during what must have been an interesting lunch break, it was discovered that the order recording the judgment of 15^th December 2011 had not in fact been sealed until 28^th February 2012, due to an administrative oversight.

The leading judgment, given by Thorpe LJ, held that the judge was not free to reverse her decision as she had done. His Lordship acknowledged the general rule that a draft judgment may be reconsidered and revised until it is perfected. It was also accepted that the fact-finding stage in child abuse cases is part of the same hearing as the welfare stage at which the court decides, in light of the fact-findings made, how best to provide for the child’s welfare. However, it was held that this was not a case of simply correcting mistakes or of explaining what had been decided. The clarity of the judgment given on 15^th December 2011, the assumption that it had been perfected, the steps taken to implement her findings, and the lack of any change in circumstance, meant that “the judge was bound to adhere to the conclusion of her December judgment”.

Sir Stephen Sedley gave a concurring judgment on the grounds that it is the delivery of the judgment, not the sealing of the order, which is critical and that there was no compelling reason for re-opening the judgment, as  “nothing had changed except the judge’s mind”.

Rimer LJ dissented, stating that the relevant principle was that a judge could recall an order at any moment until it is drawn up and sealed. HHJ Penna did, therefore, have the jurisdiction to revise her findings – and, moreover, it was proper for her to exercise it as she was “correcting what she had come to realise was a fundamental error on her part”.

Issue to be determined by the Supreme Court

The issue to be determined by the Supreme Court is the same as that faced by the Court of Appeal. Did the judge have the power to change her decision, following an oral judgment where no order had been perfected?  And if so, did she act properly in exercising it?

This case falls upon some major faultlines: finality versus justice, procedure versus substance. In so doing, it provides an interesting counterpoint to the recent Supreme Court decision in Lukaszewski v The District Court in Torun, Poland and other cases [2012] UKSC 20. In Lukaszewski some hope was given to appellants who had fallen foul of procedural requirements: in L-B the Justices will be deciding to what extent justice itself is bound by administrative dictates.

However, its actual significance may be limited. The problems which have arisen in this case depend upon a very particular factual matrix: an oral judgment; administrative failure meaning the judgment was not perfected for more than two months; and a judicial volte-face in that period. It is an opportunity for some important guidance on re-opening in family law cases, but it may prove to be a decision which is easy to confine to what Thorpe LJ termed its “extraordinary facts”.