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Evidence, Practice and Procedure: Judicial change of mind

Date:8 MAR 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsGenerally, once a judge has made a decision, the court draws up and seals the order. Subject to any appeal and enforcement that is an end of the matter. It is not quite as simple as that says the Supreme Court in Re L and B (Children) [2013] UKSC 8:

"[44] ... if a judge were entitled to change his mind, a party would presumably be entitled to invite him to do so. No doubt most judges would do their best to have no truck with the invitation. But could the party be prevented from pressing for the exercise of the jurisdiction on the basis that, in his first judgment, the judge had failed to weigh certain evidence sufficiently or at all? In effect the judge would be invited to hear an appeal against himself. There is a distinction between an appeal and a variation for cause. This is the principle underlying the basic rule that an order is final once sealed."

The facts of Re L and B were that there were unexplained injuries to a 10 week old child; and the judge originally decided that the father was the perpetrator. She then changed her mind two months later (the order was not yet, it happens, sealed): the perpetrator could have been either parent (para [9]). Because the order was not yet sealed that was permissible, said the Supreme Court, and the order could be varied accordingly. This had been the law for many years (see eg In re Barrell Enterprises [1973] 1 WLR 19; Paulin v Paulin [2009] EWCA Civ 166) said the Supreme Court; and the Justices had no plans to change this state of affairs.

This creates real problems for parties to proceedings and their advisers. We cannot know when an order is sealed, and we cannot advise clients till we do know. An appeal is against a judgement so if by chance - or otherwise - an order is not sealed, and appeal could be well under way before a judge alters his/her decision. The Upper Tribunal (though a superior court of record) does not have a seal at all. Is there anything we can do, or should be doing, to try to persuade a judge to change his or her mind? There surely any party starts to tread on thin - and judicially unwelcome - ice.

The law on appeals, and the distinction between appeals and applications to set aside a sealed order, are tolerably clear (though procedure for the latter is a little uncertain). But what happens in the twilight zone between decision (judgement) and final sealing of the order, and whether a party can ask a judge to review what has been decided is not made clear by this decision.

Perhaps the rule-makers could now reflect: it would be possible to say that as a judge rises after giving judgement - or signs off a reserved judgment - the order is, in law, executory; the decision can be enforced (as in the case of an injunction); and time runs for an appeal. The sealing of a final order then becomes but a matter of form. It records the terms of the disposal following judgment?

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).   

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.