Supreme Court: judges must be able to change their minds

Supreme Court: key is whether it was proper to vary an order

The Supreme Court last week upheld the right of judges to change their minds, even if an order is sealed by the court before a revision is made.

In unanimously reversing a majority verdict by the Court of Appeal which said a judge should not have changed her decision on who was responsible for child abuse in care proceedings, the Supreme Court said the overriding factor is dealing with the case justly.

Giving the reasons in L and B (Children) [2013] UKSC 8, Lady Hale, who sat with Lords Neuberger, Kerr, Wilson and Sumption, said that contrary to previous practice, the decision “is not reserved for exceptional circumstances and would in every case depend on its particular facts.”

She continued: “It would be relevant whether any party has acted upon the decision to his detriment especially in a case where it was expected that they may do so before the order is formally drawn up”. In this case the parties had not irretrievably changed their position as a result of the initial judgment.

The case arose in care proceedings involving two children after one of them was hospitalised with serious injuries. The judge found the father was the perpetrator in a short oral judgment. But two months later, before the order was sealed, she gave a written ‘perfected’ judgment that concluded she was unable to determine whether the mother or the father was responsible.

The mother appealed and was successful. The father brought an appeal to the Supreme Court with the support of the local authority, the children’s guardian, and their maternal grandparents.

Lady Hale said: “No judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. The judge had heard very full submissions on the evidence and it was not necessary to invite further submissions before changing her findings in this particular case.”

However, even if the initial order had been sealed by the time the judge changed her mind the Supreme Court’s decision would still have been on the basis of “whether it was proper to vary an order, rather than whether that order had been sealed”.