I’ll start with this caveat – this judgment involves a neighbouring Local Authority, and also involves members of the bar who I know, and members of the judiciary that I appear before. Writing about it then makes it difficult, without risking injured shins, hurt glances or lost readership.
So with that in mind, I will dispense with my usual snarky attitude and just give the facts and the principles (this case does have a few important things in it, which prevents me from just skipping over it, as was my first instinct)
Re S (Children W &T) 2014
This involved a finding of fact hearing about some very grave allegations of sexual abuse made by a fourteen year old, which had in turn implications for whether two much younger children might be at risk. Those allegations were firmly disputed. The Judge made the findings, and the mother and her partner (who was the subject of the findings) appealed.
The Court of Appeal begin (and end) with their views about the decision of the Local Authority not to participate in the appeal and to rather send in a document expressing that they were ‘neutral’. The Court of Appeal did not like that.
- Before moving on, I would note that the judge’s order was made in care proceedings brought by the West Sussex County Council, based upon allegations of serious sexual abuse of a 14 year old girl. In a “Position Statement” dated 24 February 2014, the Council stated that they had been kept regularly updated by the solicitors for the mother on the progress of the appeal. In paragraph 2 of that statement, the following is to be found:
“West Sussex County Council has regularly confirmed in correspondence with the parties that it maintains a neutral stance in relation to the appeal by the mother and father. West Sussex County Council provides this position statement to formally confirm [sic] to the court this neutral stance.”
At the end of the statement, it is said that the Local Authority will be happy to reconsider the question of representation at the appeal hearing “if the court expresses a wish for West Sussex County Council to be represented at the hearing”.
- To my mind, this statement fundamentally fails to grasp what were the proper roles of the local authority and of the court respectively in these appeal proceedings.
- Having taken the decision to present these allegations to the judge and having secured findings of fact broadly along the lines that it was seeking below, the least the Local Authority could have done would have been to attend before the court to ensure that the findings were not disturbed to the potential prejudice of the children in this case, who the authority had been contending were at risk from what they said had happened to another young girl at the hands of these parents. Non-participation was not an option. It was never the function of the court to advise the parties, still less to advise upon the obvious, namely that the presence of the local authority was required. That was why Ryder LJ’s order (with which no doubt the local authority had been served) had directed an “inter partes” hearing.
- After the grant of permission to appeal, at a hearing without notice to the potential respondents, the Lord/Lady Justices of the court do not see the papers in the case until a constitution to hear the appeal is identified and the papers are delivered, a matter of days before the hearing, to the assigned judges. For my part, at that late stage on the court’s designated reading day, I was merely puzzled as to why there was no sign of participation from the local authority. For the future, for my part, I would hope that this type of insouciance on the part of local authorities will be avoided.
and at the end, from the President
- My final concern relates to what, I am bound to say, was the quite astonishing attitude to the appeal evinced by the local authority. It was neither present nor represented before us. Even more surprisingly it filed a remarkably perfunctory position statement which, without condescending to particulars, simply announced that “it maintains a neutral stance in relation to the appeal” and “in light of its neutral stance … has chosen not to file/serve a Respondents Notice.” I do not understand what the local authority thinks “neutrality” means. A guardian may on occasions, as indeed in the present case, appropriately maintain a stance of neutrality in relation to a fact-finding hearing. The guardian, after all, is not setting out to make a case and prove facts. The local authority, in contrast, had commenced the proceedings, had decided to make a number of allegations – as it happens very serious allegations – and had succeeded in persuading the judge that most of them were proved. How in the circumstances could the local authority be neutral? Had it suddenly become indifferent to the outcome? Surely not. The consequence is that the court was deprived of any assistance by way of response. Even if, in order to conserve taxpayers’ money (as the position statement said), it was appropriate not to send an advocate to attend the hearing, written submissions resisting the appeal and setting out, even if fairly briefly, why it was being said that the appeal should be rejected would surely have been of assistance. I add these observations by way of supplement to what McCombe LJ has already said on the point, comments with which I entirely agree.
Thus, principle number 1 of the case – Local Authorities need to play a part in the appeal as a respondent, whether they desire to or not.
Principle number 2 – we have a repeat of the clear message that fact-finding hearings are politely discouraged
- My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S, Cambridgeshire County Council v PS and others  EWCA Civ 25, Ryder LJ made clear, para 29, that a split hearing in a care case will usually be appropriate only in either “the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made” or “the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child.” He went on, “For almost all other cases, the procedure is inappropriate.” I agree. This is not the kind of case in which, in future, a split hearing should be ordered.
[I’m sorry, I have tried to do whatever the typing equivalent of biting your tongue is, but I am struggling]
Principle number 3 – a reminder of the importance of complying with Court orders – in this case, the order made that the Local Authority should produce and lodge for judicial approval a schedule of the findings that were made did not happen. That left the Court of Appeal looking at a schedule of findings that were the draft findings sought, and not a schedule of what the Court had actually found.
The simple fact is that, even now, the court’s order has not been complied with. Yet worse, there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking. It is, I regret to say, yet another manifestation of a deeply rooted culture in the family courts which I had occasion to condemn in Re W (A Child), Re H (Children) 2013] EWCA Civ 1177, paras 50-51: “the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.” Despite our inquiries, I was left wholly unclear as to how this deplorable state of affairs had been allowed to persist for so long. It must be remedied without delay: the parties as soon as possible must put before the judge for her approval an agreed schedule of the findings she made. For the future, there must be no repetition.
Principle number 4 – the appeal turned in large part on the appellant’s claim (which was rejected) that the Judge in her interventions had ‘descended into the arena’
The lead case on this, as we know, is Jones v National Coal Board, way back to Lord Denning’s time.
“And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v Clewer. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”
…..[I]t cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.”
The shorthand for this is usually, has the Judge descended into the arena and started to participate in the litigation, rather than asking such questions as are needed for clarification.
The Court of Appeal in this case were clear that this Judge had not stepped over that line, but do add that where the witness being asked questions is vulnerable, it may be that a Judge has more leeway with the nature and type of interventions than with other witnesses.
The Court also suggest that as part of the new culture, Judges might well be more active in the proceedings than would have been at the time of Jones. But that if a Judge does overstep the mark, the Court of Appeal would intervene.
The first concerns reliance on Jones v NCB. That was a very extreme case on the facts. Moreover, since 1957 when that case was decided there has been a culture change in the conduct of litigation. More attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case. This is true both of civil litigation (see CPR Part 1.1) and family proceedings (see FPR Part 1.1). One of the corollaries of this new culture is that a judge is expected to take a more active part in the proceedings than would have been the case half a century ago: see Jemaldeen v A-Z Law Solicitors  EWCA Civ 1431;  CP Rep 8. That said, if a judge does overstep the mark, even in a family case, this court will intervene. Thus in Re J (A child)  EWCA Civ 1231;  1 FLR 716 counsel was prevented from pursuing a line of relevant cross-examination. She rightly objected to the judge that she was being denied the opportunity to put her client’s case, but the judge did not accede to her objections. This court ordered a new trial.
This development is likely to crop up again, as one can see from reading paragraph 28 of the new Practice Direction 12J (dealing with fact-finding hearings in private law proceedings) to reflect the reality that in a post LASPO world, we are likely to have unrepresented parties cross-examining one another
The relevant portions being:-
“Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances , in order to ensure both parties are able to give their best evidence”
That guidance does not refer to the principles in Jones v NCB, but they would probably be worth referring to before such an exercise occurred. It seems that this is likely to be a particularly difficult balancing act. As we know, in any finding of fact hearing, at least one party walks away unhappy, and if they are unhappy about the way the Judge conducted that questioning (either too harsh, or too soft, too long or too short) an appeal might well arise.
Principle 5 – there were a number of matters about the conduct of the hearing that the appellants sought to rely on, and each of those was quashed by the Court of Appeal, largely on the basis that applications were not made AT THE TIME about whether this particular course should or should not be followed. You do run the risk, if you bite your tongue and press on regardless, of not being able to rely on those case management decisions made by a Court in a later appeal.