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(Supreme Court, Lady Hale, Lords Neuberger, Kerr, Wilson, Sumption, 20 February 2013)
A fact-finding hearing took place to determine the cause of a number of serious injuries to the child. The judge announced at the conclusion of the hearing that he found that the father was responsible. The order, however, was never sealed. The local authority in reliance on the decision made plans for the child to be placed with the maternal grandparents alongside an older sibling.
When the judgment was prepared and circulated the judge said that having reconsidered the matter he found it was impossible to identify a sole perpetrator and could not exclude the mother from the pool of potential perpetrators. The mother appealed.
Thorpe and Sedley LJJ in allowing the appeal, found that although a judge had jurisdiction to recall an order before it was sealed, something more was needed than a change of mind to justify the reversal of a judgment. Rimer LJ dissented. He found that the judge was honouring the judicial oath by correcting what was recognised as a fundamental error on her part. The father, supported by the local authority, children's guardian and the maternal grandparents appealed to the Supreme Court and sought a restoration of the original order.
The Supreme Court allowed the appeal. The authorities were clear that the judge had the power to change his or her mind before the order had been sealed. The Court of Appeal's application of the exceptionality test was not correct. No judge should be required to decide on the future placement of a child on what he or she felt to be a false basis. The paramountcy principle had to apply to the final decision.