Role of the appellate Court

This case was decided in December but only just reported. It relates (of course) to an appeal arising from a failure of the Court at first instance to properly balance the issues and pros and cons in a Placement Order case.

Re B (A child) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html

This one is interesting because it involves an appeal initially from what was the Family Proceedings Court (and is now Tier One of the Family Court, or Tier Three of the Family Court, nobody seems absolutely sure whether a higher number is good, or bad, we just know that District Judges are in the middle and are Tier Two).   It was one of my Burning Questions post Re B-S months ago, as to whether the expectations of Re B-S bore down on the Justices as they did on the Circuit Judge  (which seems to be common sense, but there’s existing authority that you can’t expect the same degree of analysis and rigour from three lay Justices as from one Judge).

The first time this issue came up in appeal, it wasn’t decided because the Court of Appeal wisely and sagely decided that the Justices reasons were marvellous rather than flawed  (one of those moments when you know you’ve lost your appeal in the first ten seconds), and the case wasn’t a reported one.

However, second time lucky

It is common ground that the FPC’s Reasons did not involve a sufficient analysis of the evidence that they had heard and read and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation that is, an evaluation of the interference with the article 8 ECHR [Convention] right to respect for family and private life that the local authority’s care plan and the court’s orders would involve. As I shall describe, in fairness to the magistrates, the evidence before the court did not contain the material that would have been necessary to conduct that analysis and evaluation. Furthermore, as the magistrates’ Reasons betrayed, the FPC adopted a ‘linear approach’ to decision making thereby excluding the parents as carers without any comparison of them with the other realistic options for B’s long term future care.

• It is common ground in this appeal that Judge Clarke held and was entitled to hold that, among other errors, the FPC were wrong in law in the following respects:

i) they adopted a linear approach to their decision making;

ii) they failed to carry out a welfare analysis of the realistic options for B’s long term care; and

iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.

• In this case and having regard to the first court’s Reasons, which this court has had the opportunity to consider, I can take these conclusions as read. Furthermore, it is not suggested that the magistrates’ failings led to their analysis and evaluation being other than wrong within the meaning of Lord Neuberger’s formulation at [93 (v) to (vii)] and [94] of In the Matter of B (A Child) [2013] UKSC 13 [Re B]. On that basis alone, it was open to Judge Clarke to have considered allowing the appeal and if she had set aside the orders, to have directed the applications be re-heard. She did not do that, but instead undertook her own welfare analysis and proportionality evaluation. Although that analysis is itself criticised for a lack of reasoning and detail in the necessary comparative exercise, the judge felt able to come to the same conclusion as the FPC and dismissed the appeal.

That’s pretty damn clear authority for the fact that Justices Facts and Reasons in an adoption case had better damn well cover all the requirements of Re B and Re B-S, otherwise they have done it wrong.  [It has taken SIX MONTHS for any of my Burning Questions https://suesspiciousminds.com/2013/11/01/burning-questions/ to be answered, and now I’ve had two in a week]

Anyway, the Court of Appeal was far less interested in satisfying my innate curiousity and more interested in the actual appeal in question, which was – having found that the Justices had got their decision wrong on a number of levels, should the Circuit Judge who heard the appeal have sent the case for re-hearing, or just made the decision herself and done it right? What happened in this case was that the Judge did deliver a judgment, containing all of the necessary ingredients, had done the job properly and made orders, that the father, though Mr Weston QC appealed.

Mr Weston, for the father was arguing broadly that having not heard the evidence, the County Court ought to have stopped at the point where they resolved to grant the appeal and that the Justices reasons were so flawed as to make their decision wrong, and not go on to “fill in the gaps”  themselves.  And further that even if the Judge was right to attempt it as a general principle, to do so in this case ignored the gaps in the evidence that would make such a process unfair.

• In this case, Judge Clarke held that the magistrates reasoning was insufficient and thereby wrong and the question arises whether a judge was permitted to ‘fill the gaps’, provide her own reasoning or substitute her reasons for those of the first court.

• Mr Weston for the appellant makes a strong and clear case about what he submits was the irregularity of what happened. He submits that the judge rightly decided that the FPC had to consider the substance not just the letter of the statutory provisions. They had to undertake an analysis rather than pay lip service to the words. He submits that the FPC could not do that because the evidential materials were missing. Not only were they missing in the FPC, but at the hearing where the judge conducted her own analysis and evaluation, the evidence was still missing. Any new evidence relating to new issues of fact and changes of circumstance (and there was at least one new and potentially significant allegation that may have been relevant) or the implications of the same for the welfare analysis and proportionality evaluation, was also missing. Furthermore, the benefit of listening to and appraising the witnesses including the parents was lost in a procedure which was not a true re-hearing. Mr Weston accordingly submits that the procedure adopted was wrong and that its consequence was a welfare analysis and a proportionality evaluation that were inevitably flawed.

• Mr Weston also submits that a judge conducting a review has a decision to make as respects any evidence that needs to be heard or re-heard when a determination is wrong as a matter of substantive or procedural law. He or she may conduct a limited re-hearing on a discrete point if the material exists to enable that to be done. That may involve considering an application to adduce additional evidence but in any event will involve a careful appraisal of whether the evidence exists to decide the issue in question and how that exercise is to be conducted to ensure procedural regularity.

• Mr Weston’s final point is that the evidence in these proceedings was so defective on the point that it was not available to the judge to fill the gaps that existed. Accordingly, even if she had allowed the appeal and moved to re-hear the case, she could not have done so immediately without the benefit of case management to ensure that the court had the evidence that it needed to conduct its own analysis and evaluation.

• Mr MacDonald like Mr Weston carefully identified the difference between a review and a re-hearing but was astute to identify cases in which a review and a re-hearing may be a continuum. He submitted, correctly, that the duty of the judge conducting a first appeal is to decide whether the proportionality evaluation of the first court was wrong. A proportionality evaluation is not a discretionary decision: it is either right or wrong and whether a decision based upon it should be set aside on appeal depends upon an analysis of the kind formulated by Lord Neuberger in Re B at [93] and [94]. Mr MacDonald submitted that the judge on appeal having identified the deficiencies in the first court’s decision making was obliged to consider whether the proportionality evaluation was thereby or in any event wrong. In an attractive submission he demonstrated that in every case where the first court has made an error in the welfare analysis (even where that analysis is based on a sufficient evidential base) the proportionality evaluation will be affected such that it may have to be re-made. He rhetorically asks the question whether in every such case the appeal court is required to remit the proceedings for a re-hearing when everything else in the case is intact and procedurally regular.

• The continuum described by Mr MacDonald is very real in two senses: a) the welfare analysis and proportionality evaluation are intimately connected because an error in the analysis will inevitably have an effect on the evaluation with the consequence that an appeal court has to consider them together and b) the appellate court’s review of welfare and proportionality will involve having to consider whether there would be any difference in the ultimate conclusion, that is the order made, if the welfare analysis and proportionality evaluation were to be re-made. Aside from other considerations, that is because an appeal lies against an order and not the reasons for it (see Lake v Lake [1955] P 336). That at least involves, where practicable, a hypothetical exercise in seeing what the evaluation would be if it were to be re-made on a correct welfare basis.

• Mr MacDonald acknowledged that the decision by an appeal court whether to re-make a welfare analysis and proportionality evaluation or remit for a re-hearing is itself a discretionary exercise. He identified the question which the appeal court needed to ask in relation to that discretionary exercise as being: “is the error rectifiable by the appeal court or is it too big?” That tends to suggest that there is an identity of approach by the appellant and the respondent to the question this court is asked to answer.

This is a big issue – if during the process of an appeal, the appellate Court is satisfied that the original decision was made wrongly, what are they supposed to do about it? Granting the appeal is easy, but that’s only half the story. Do you send it back for re-hearing, or give your own subsituted judgment addressing all of the issues? Which is the right thing to do? If either are possible in certain circumstances, what are those circumstances?

Conclusion in principle:

• I have come to the following conclusion about the question asked of us. On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong. Armed with the error identified, the judge then has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing. The judge has the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed. In the exercise of its discretion the court must keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which follows is procedurally regular, that is fair.

[Suesspicious Minds interruption – this is saying that the appellate Court have the power to do either – to remit for rehearing OR make their own decision, but they have to be sure that the course that they take is FAIR]

•  If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remains the same, the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.

• If the appeal court is faced with a lack of reasoning it is unlikely that the process I have described will be appropriate, although it has to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing. In any event, the re-hearing may require further case management.

• The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.

Thus, if the error that led to the appeal is sufficiently narrow or discrete that the appellate Court can fairly make their own decision, then they can do so, but if it is wife and arises from missing evidence or the failure to answer a key question, or the credibility of witnesses is at issue, then a re-hearing would be the right outcome.

Application of the conclusion in this case:

• Mr MacDonald’s primary submission is that at least initially Judge Clarke correctly identified what was required of her in this passage of her judgment at [50] that I have cited at [10] above. Later in judgment and perhaps as a consequence of a discussion on the transcript to which this court has been taken, Judge Clarke appeared to conflate the issues she had so carefully identified by regarding McFarlane LJ’s analysis in Re G at [69] as being a mandatory requirement to re-make a proportionality evaluation where errors are identified which vitiate a first court’s analysis. I do not read that part of McFarlane LJ’s judgment in that way. He was identifying the logical consequence that errors in the decision making process would necessarily have an effect on the proportionality evaluation rather than that in every case the appeal court should substitute its own proportionality evaluation for that of the first court. The latter formulation would be contrary to the dicta of the majority of the Supreme Court in Re B. Had Judge Clarke not been deflected from her task, she would have reached the point where the discretionary decision identified should have been made. Mr MacDonald submits that had she done so, she had all the material she needed to re-make the decision. He submits that the error of the FPC was not critical to the determination because the evidence existed in support of a welfare analysis and a proportionality evaluation that were and are coincident with the orders made by the FPC. To that extent, he says, the judge was able to fill-in the gaps and avoid a full re-hearing that would have involved inevitable delay. He has taken this court through the judge’s decision making process in an attempt to support the exercise she undertook.

• The final evidence of the social worker does not include any welfare analysis or balance. It also fails to deal with why the adoption of B was necessary or required. The local authority’s permanence report which was exhibited to their Annex B report in support of the application for a placement order ought to be one of the materials in which a full comparative analysis and balance of the realistic options is demonstrated. I need say no more than that both reports are poor and demonstrate a defective exercise in identifying the benefits and detriments for the child of the realistic long term options for the care of B. That was necessary not just for the court’s purposes but also for the local authority’s (adoption) agency decision maker whose decision is a pre-requisite to a placement application being made. The revised care plans and statements of evidence filed after the local authority changed its mind contained statements relating to their concerns about whether the parents had the capability to work openly and honestly with them. Beyond that they are devoid of any welfare analysis of the alleged change of circumstances or of the options for the long term care of B. There is no evidence relating to the proportionality of the plan proposed.

• Although the children’s guardian’s analysis makes reference to both exercises and supports the local authority’s plan for adoption, it likewise does not descend to an analysis of the welfare of B throughout his life except for just one opinion in one of 36 paragraphs where she says: “My own view until very recently was that this is a finely balanced case; although I had significant concerns about the parents’ ability to work in partnership with professionals. I balanced against that the potential loss to [B] of the opportunity to live in the care of his birth family if such an outcome could be achieved. I was particularly mindful of his right to family life and the loss to him of a relationship with his siblings.” So far as it goes, that is a relevant opinion, but in my judgment not a sufficient analysis for the purposes of the ACA 2002 or the authorities. There is no evidence directed specifically to why it is necessary to dispense with the consent of the parents to adoption.

• With the benefit of access to the original evidence that this court has had, it is clear that that evidence could not in itself have supported the conclusions reached by the FPC had it been adopted as the reasoning for the same. In particular, there is no comparison of the benefits and detriments of the realistic welfare options for B upon which the FPC could have relied. In the absence of a sufficient welfare analysis by the FPC, there was simply no analysis at all. Accordingly, there was nothing of substance to be evaluated to decide whether or not it was proportionate. Judge Clarke did not hear any additional evidence with the consequence that the evidential basis for the orders remained as defective in the County Court as it had been in the FPC. No amount of elegant language could disguise that fact. It is of course open to a specialist judge to construct an analysis required by statute from the evidence of fact, expert opinion and evaluative judgment that she has heard and that is a distinct exercise from a professional assessment that is required because it is outwith the skill and expertise of the court: Re N-B (Children) (residence: expert evidence) [2002] EWCA Civ 1052, [2002] 3 FCR 259. In this case there was no evidential basis for that exercise.

• Where the appeal court cannot comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision has been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. There is a continuum between the functions of the appeal court to review the proceedings of the first court and to conduct discrete decision making functions that fill identified gaps in analysis or evaluation that represents an appropriate exercise provided it not be used so as to create a situation of procedural irregularity. It is not helpful for this court to be prescriptive. Each appeal will have its own matrix of fact and value judgments. In this appeal, the evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

• At the conclusion of the appeal we allowed the appeal with reasons to follow. We set aside the care and placement orders and remitted the proceedings for a re-hearing of the welfare decision relating to B by a different judge in the County Court who had already been allocated to consider the local authority’s applications relating to the parents’ new baby.

That all seems perfectly proper to me, and it is nice to have it clarified. My suspicion is that we will see more re-hearings than substitutions of judgment. That does raise its own question, as to what happens with very time-sensitive decisions (like an ICO removal) where hearing-appeal-rehearing seems to build in quite  a delay – and if the first court granted the removal, is the child to be returned after the successful appeal pending the rehearing? It will probably be case specific.