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I still haven’t found, what I’m looking for – or, going off-menu


A quick discussion of the Court of Appeal decision in RE J-L (Findings of Fact : Schedule of Allegations) 2012 



On my traditional grumbles about the Court of Appeal the first is unfounded – they have given it a properly descriptive name. The second, that an important decision is made but no judgment published, is still there, albeit that the decision was less than a week ago, so no doubt it is in the post.



So, the blog is with the caveat that I haven’t seen the full transcript yet. But interesting, and potentially significant points are raised.



Here’s the Family Law summary, prepared with admirable economy, by Samantha Bangham




(Court of Appeal, Longmore, McFarlane LJJ, 29 November 2012)


Following the breakdown of the parents’ relationship, the children lived with the mother for a period. Both parents had issues with drug and alcohol abuse during the relationship but when the mother’s use continued the children were removed and placed with their father. Three years later one of the children made disclosures of sexual abuse by their mother while in her care.


During a fact-finding hearing the judge found none of the specific allegations contained in a schedule had been proved. However, due to the comments made by the children he found their sexual knowledge to be of concern. He made alternative findings that they had witnessed adult sexual activity while in the mother’s care. The mother appealed.


The appeal would be allowed. While it was understandable that the judge would find the children’s comments concerning it had not been open to him to make alternative findings when those contained in the schedule had already been found unproved.  



Now, how that sounds to me (and it may prove different in the full transcript) is that the Court of Appeal effectively found that the Judge could have legitimately made a finding that the children had been exposed to adult sexual activity whilst in mother’s care IF that had been one of the items on the schedule of findings, but was not allowed to go ‘off-menu’ and make a finding of his own motion based on what the evidence led him to conclude.


I can see arguments either way on that. On the one hand, a person should be entitled to see the case being put by the applicant, and to see what the case they have to answer is. On the other, if a Judge hearing all the evidence considers that what happened is something other than what is set out in the schedule of findings BUT is something more than “X is alleged and X did not happen”, it seems to me that the Judge is well placed to do that.    I tend to settle on the role of a fact-finding being a judicial attempt to find the truth about matters, and I would prefer that the Judge had the ability to set out the findings and the ‘truth’ demonstrated by the evidence and not be hamstrung by the way that a Schedule of Findings has been drafted, if that conclusion is not amongst the list of findings.


It may be that what is needed when drafting a schedule of findings from now on is to plead in the alternative, so that the Judge looking at the menu of possible findings will see the one they consider apposite, even though it is not the dish that the applicant wishes them to choose.


That being the case, we are going to get much longer schedules of findings. And the person seeking those findings may feel a sense of disquiet that rather than simply running the case that they assert is true, they are obliged to put in some lesser possibilities and explanations, to avoid the possibility of the full-blown finding or nothing.


About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

5 responses

  1. If a Local Authority take action because they believe a child has been abused or neglected then they need to set that out and prove their case and it’s bad enough at the moment with hearsay, fishing trips, paid gun experts and psychobabble, never mind foster carers being used along with contact notes, and social work diatribe and failure to report honestly…do u really want to hang any parent the system comes into contact with? I note how cagey social workers and CAFCASS officers are about having meetings recorded, never mind about having the truth out…

    • I think the LA should set out their case, Shaun – I take a lot of care with my schedule of proposed findings, and i would always plead in the alternative, but not everyone drafts that way. Some lawyers just set out the findings they ask the Court to make, and not the other possible findings.

      • in a recent case the LA set out their allegation and evidence relied on, we destroyed their evidence and judge made findings on another basis – LJ Thorpe refused PTA on basis judges can do what they want!!

      • I don’t plead in the alternative, though I think that from now on I may do. I can’t understand the idea that the judge is limited to what findings the advocates choose to seek. Case law suggests that the court should be free to go beyond what the advocates put before it e.g. in terms of agreed orders. Though of course all parties should know what case they have to answer. Perhaps in cases where the evidence changes or the judge wants to make a different finding he or she should ask the advocates to amend the schedule, though what the judge does if they refuse, I don’t know.

        The LA of course has a statutory duty to put a case before the court. I wonder if it’s always understood that it serves the interests of justice and democracy and therefore of the child and parents that all possible arguments are put before the court?

  2. Or if the judge is clearly leaning towards an off-menu finding, the advocate for the LA could ask for permission to amend the Schedule and the parents advocates should then be given the opportunity to deal with the new issues. This may, if necessary, lead to adjournments part-heard before finalisation of a fact finding, but in fact this is better than a wasted hearing when in fact the evidence that emerged was properly leading the court in an important but different direction.

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