“I completely forgot”

 

This is a successful appeal (indeed fairly unusually it was an appeal that by the time the Court of Appeal came to look at it, all four parties were in agreement should be granted) about a decision in the High Court to make a finding of sexual abuse against a child, T, who had just turned 16 when the High Court considered the case. T had been the subject of a Care Order and Placement Order when she was six, then placed for adoption.

 

(Bit nervous about this one, as I know that 75% of the silks in the case read the blog… and I have a mental crush on all three of them. And because I also have a lot of respect for the High Court Judge who gets monstered in the appeal judgment)

 

The adoption got into difficulties, and T went into respite care for a short time in May 2014. She went back to her adopted family at the end of May and that carried on until the end of August 2014, at which point the adopters agreed a section 20 arrangement – the social work team wishing to remove T as a result of her allegation to a CAMHS worker. The allegation was that during that period from May 2014-August 2014 when she was with her adopted family, the adoptive father had sexually assaulted her, including one allegation of rape.

P (A Child), Re [2018] EWCA Civ 720 (11 April 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/720.html

 

The section 20 arrangement continued. It was obvious to all that T would not be going back to the adopters. (Listen, I know that at this point, the adopters are legally her parents and I don’t seek to diminish that, but I think to understand the case it is easier to say adoptive parents and birth parents). The s20 continued until the Local Authority issued proceedings in April 2016. By that time, T had given an ABE interview, made further allegations and declined a second ABE interview and made partial retractions of the allegations. Her behaviour had deteriorated and by the time of the Court case, had been detained under the Mental Health Act 1983. (which is rare for a child)

 

The first question the case raises then, is why this child was under a section 20 arrangement for so long, rather than proceedings having been issued?   I’ll preface this by saying that obviously a case involving an allegation of rape against a child – particularly rape where the alleged perpetrator is an adopter and someone still approved to adopt children, ought to have been placed before the Court. Very quickly after those allegations were made – perhaps allowing a short period of time for the investigation to take place.

(I can’t lay my hands on the authority at the moment, and Hershman McFarlane is being uncooperative, but I’m fairly sure that there is a mid 1990s authority that says where the LA believe the child has been the subject of serious sexual or physical abuse, they ought to place it before the Court by issuing proceedings… I wish I could find the authority. Perhaps one of my illustrious silk readers can illuminate us.  The Act itself just says that the LA can’t issue proceedings unless they believe the threshold criteria to be met – so it says that there are situations where they shouldn’t, it is silent about the circumstances in which they should. The LA don’t have to issue proceedings on every child where the threshold is met. )

 

So what follows is not a justification or excuse for the delay, but an attempt to consider the context.

 

Here are some possible reasons why proceedings were not issued :-

 

1. It just never got considered (prior to April 2016), and it wasn’t a conscious decision not to, so much as just nobody thinking about it.
2. The adoptive parents were not asking for T back, T didn’t want to go back, T was in what was considered to be a safe place, and so there was a thought process that nothing was to be gained by going to Court. T wasn’t going to be adopted by anyone else and a Care Order would add nothing to the situation on the ground. Perhaps people even actively thought about the ‘no order principle’ and considered that it wasn’t possible to make out a case that the making of a Care Order (as needed by article 8) would be ‘proportionate and necessary’
3. This was happening BEFORE the s20 drift was coming to judicial attention and prominence as an issue, and when those s20 cases did emerge, that’s when the LA did take action.
4. Perhaps everyone was caught up in the day to day management of T and what she needed in terms of placement and stability, and overlooked the bigger picture.
5. Let’s be quite honest – there’s the potential that the parents in this case were treated differently (because they were adopters) to the way they would have been treated as birth parents.

 

However, ALL of those issues are hard to excuse the fact that T’s sister, X, remained with the adoptive parents. So the LA had an allegation of rape by T, known about for over 18 months, and knowing that a younger sister was still living with the adopters.

 

(So either they didn’t believe T’s allegations OR they thought for some reason that X was safe, but the point is they couldn’t know for sure either way)

Anyway, the Court of Appeal were critical of the delay

 

12.Unfortunately, and to my mind inexplicably, the state of affairs whereby T was accommodated under CA 1989, s.20 was maintained from August 2014 until the institution of care proceedings in April 2016, notwithstanding the clear and stark issue of fact created by T’s allegations and the father’s wholesale denial. Irrespective of the fact that T’s mental health and presenting behaviour may have rendered it impossible for her placement in the family home to be maintained, the need to protect and have regard to the welfare of the younger sibling, X, who remained in the family home, required this significant factual issue to be determined

 

The next issue in the case is that the adoptive parents agreed that the threshold was met for T, because she was beyond parental control. The LA, however, sought a finding about the sexual abuse allegations (five findings in all). That obviously makes sense given that X wasn’t beyond parental control, and there was a need to establish what happened to T, to decide if X was at risk of sexual harm. That makes sense to me. (I can’t, so far, make sense of why it appears that the proceedings were about T, and not T AND X – and the Court of Appeal say that

 

 

50.So far as X is concerned, although she has been the subject of arrangements made under the Pre-commencement Procedure operated within the Public Law Outline, no proceedings have ever been issued with respect to her since the making of the adoption order )

 

The High Court heard from 16 witnesses at the finding of fact hearing. Things went wrong when Parker J came into Court to deliver her judgment

 

 

 

 

The judgment

17.The oral evidence had been concluded on 18 November 2016 and closing submissions were delivered on 18 and 25 November. The case was then adjourned to 8 December 2016 for the delivery of judgment. On that occasion, however, the Judge explained that she had been occupied with other cases and had been unable to prepare a written judgment. She had, however, reached “some conclusions” and, with the parties’ agreement, she stated what those were in the course of a short judgment which runs to some 6 pages in the agreed note that has been prepared by the parties. In short terms, the Judge rehearsed a number of the significant points in the case, for example, T’s mental health, the recording of her allegations and the ABE interview process, any evidence of inconsistency and T’s overall reliability, and an assessment of the father’s credibility before announcing her conclusion in the following terms:

 

 

 

“I have come to the conclusion therefore, and I am sorry to have to do so as I thought the mother and the father were the most likeable people, but during the course of 2014, there was an attempt at least, it may have been more, of sexual congress between the father and T.”

18.The case was then adjourned to 30 January 2017 for the delivery of a full judgment. A note of what had been said in court on 8 December was agreed between the parties and submitted to the Judge. On 30 January the Judge again indicated that, due to pressure on her time as a result of other cases, she had not been able to prepare a full judgment. Instead the Judge gave a lengthy oral judgment, seemingly based on prepared notes.

 

 

19.On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.

 

 

20.The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 and subsequently endorsed in the family law context by this court on many occasions.

 

 

All of this was compounded then, because despite knowing that the case was going to be appealed, following the judgment in January 2017, the transcript of the judgment wasn’t made available. The transcribers sent it to the Judge on 18^th March 2017 – the Judge sent an approved copy back to them SIX MONTHS later, September 2017, but that approved copy never got sent to the parties or the Court of Appeal.

 

The Court of Appeal (at the time of hearing the appeal) were therefore working from an agreed note of the judgment rather than the transcript

The Judge’s decision

26.Early in the judgment of 30 January the Judge records the decision that she had already announced at the December hearing in the following terms (paragraph 17):

 

 

 

“I have decided that she has been sexually interfered with by her father and that she has been caused significant emotional harm by reason of her mother’s disbelief in telling her so, although my criticism of the mother was highly muted in the circumstances for reasons I will come back to.”

27.After a summary of the evidence the Judge stated (paragraph 58):

 

 

 

“It is against that background that I need to assess the threshold.”

 

She then set out the content of the local authority fact-finding Schedule introducing it with the following words:

 

“I am asked to make findings in terms of:”

 

Unfortunately, the judgment does not record the Judge’s decision on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”. Whether that statement amounts to a finding is, however, not entirely clear as it simply appears as a statement in the 8th paragraph of a 40 paragraph section in which the Judge reviews a wide range of evidence.

28.The basis of the appeal is that the Judge’s judgment fails sufficiently to identify what (the local authority would submit, if any) findings of fact the Judge made.

 

 

29.Before leaving the 30 January judgment, it is necessary to point to 2 or 3 other subsidiary matters that are relied upon by the appellants as indicating that the judgment, substantial though it may be in size, is inchoate:

 

 

 

1. a) Prior to listing the witnesses who gave oral evidence the Judge states “I think I heard the following witnesses”. The list of 13 witnesses is said to omit 3 other individuals who also gave oral evidence.

 

1. b) In the closing stages of the judgment the Judge makes one additional point which is introduced by the phrase “one thing I forgot to say” and a second which is introduced by “also one thing I have not so far mentioned, and I should have done”.

 

1. c) At the very end of the judgment, and after the Judge has gone on to deal with procedural matters unrelated to the findings of fact there appears a four paragraph section dealing with case law related to the court’s approach to ABE interviews where it is asserted there has been a breach of the ABE guidelines. That section is preceded by the phrase “I completely forgot”.

 

There are of course, all sorts of different styles and approaches one can adopt to delivering a judgment and the Court of Appeal are not trying to be prescriptive or to fetter a Judge’s discretion of   stylistic delivery. Having said all that, if the immediate comparator that comes to mind is Columbo talking to Roddy McDowell, that’s not a good thing.

 

 

The appeal itself

30.Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.

 

 

31.The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.

 

 

32.In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.

 

 

33.The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.

 

 

34.That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

 

 

35.Against that background it is helpful to quote directly from the skeleton argument prepared by Miss Markham and Miss Grieve on behalf of the local authority:

 

 

 

“5 At the heart of the appeal are findings that (father) behaved in a sexually inappropriate way towards his daughter T. The findings are set out in this way, as it is accepted by the respondent local authority that the judgment given by Mrs Justice Parker does not particularise the findings made nor does it cross refer findings to the local authority Schedule of findings. As such the findings have not been accurately recorded or set out.

 

….

 

“14 The local authority does not oppose the appeal for reasons set out below.

 

15 However the local authority does not accept that all grounds as pleaded would be matters or arguments which the local authority would either not oppose or indeed agree, if taken in isolation. The focus in approaching this appeal has been to stand back and have regard to the fairness and integrity of the judgment and the process taken by the parties to try to clarify the judgment and in particular the findings made.

 

16 It is submitted that it must be right and fair that a party against whom findings are made should know the actual findings made and the reasons for them. It is submitted that reasons on reasons are not necessary, but clarity as to findings and a clear basis for them is a primary requirement of a Judge.

 

17 It is significant that the learned Judge has resisted requests of her to clarify her judgment and that in particular she has not taken opportunities to set out the findings she has in fact made.

 

18 Dovetailing into that error is the argument that flows from that omission; absent clear findings it is impossible to see, understand and argue that the Judge formulated her findings on clear, understandable and right reasoning.

 

…

 

21 In this instant case it is submitted on behalf of the parents that the judge did not even set out the findings, not least allow them to see whether she fairly and with significant detail set out her reasoning for coming to the findings she then made. Further requests of the Judge were properly made and the learned Judge has neither responded to them nor clarified why she is not engaging in the requests of her

 

…

 

23 (Having listed the short specific findings made by the Judge) It is acknowledged that these matters are the most detail (the Judge) gives to her findings. Whilst it is asserted by the local authority that the learned Judge was able, within the ambit of her wide discretion to make findings, it was incumbent upon her to set out with clarity what those findings were and how she came to make them.

 

24 It will be apparent from the matters set out above that she failed in this task and that she failed to cross refer back to paragraph 59 (where the Judge listed the content of the local authority Schedule of findings) and set out what she had or had not found proved.”

36.The local authority identified two specific grounds relied upon on behalf of the father, one asserting that the Judge rejected the father’s case on the deficits on the ABE interview, against, it is said, the weight of the evidence, but provides no analysis for coming to that conclusion. Secondly the local authority accepts that there were many examples of inconsistency within the accounts that T had given. In both respects the local authority expressly acknowledged that the Judge failed to engage with these two important aspects of the case and failed to set out her findings in respect of each.

 

 

37.The local authority, rightly, argue that a Judge has a wide discretion to accept or reject evidence in a case such as this and that the Judge does not have to refer expressly to each and every detail of the evidence in the course of their judgment. The local authority’s skeleton argument, however, accepts “that a fair and balanced assessment of the cases advanced and evidence for and against said cases is necessary, proportionate and fair and has not occurred sufficiently in this complex case.”

 

 

38.Miss Kate Branigan QC, leading Miss Lianne Murphy, both of whom appeared below for T, acting on the instructions of the children’s guardian adopt a similar stance to that taken by the local authority. In their skeleton argument (paragraph 10) they state:

 

 

 

“Albeit T maintains that the allegations made against her father are true, the children’s guardian has had to conclude that the judgment as given by the court on 30 January 2017 is not sustainable on appeal and that inevitably the appeals on behalf of both appellants must succeed.”

 

Later (paragraph 14) it is said:

 

“Regrettably we accept that it is not possible from the judgment to identify what findings the court has made. At paragraph 59 of the judgment note, the court sets out the detail of the findings it is invited to make, but at no stage thereafter does the learned Judge indicate which of the findings she has found established to the requisite standard nor does she attempt to link what she is saying about the evidence to the specific findings sought….On this basis alone the judgment is arguably fatally flawed.”

 

And at paragraph 15:

 

“We further recognise in certain key respects the court has failed to engage with the totality of the evidence to the extent that any findings the court has purported to make are unsustainable in any event. In particular, we accept the arguments advanced on behalf of the appellant father… that the court failed to undertake a sufficiently detailed analysis of the context in which T’s allegations came to be made, failed to engage with the professional evidence which called into question the reliability of those allegations and did not weigh appropriately in the balance the inconsistencies which were clearly laid out on the evidence in relation to T’s accounts.”

39.In the light of the parties’ positions, the oral hearing for this appeal was short. All were agreed that the appeal must be allowed with the result that, at the end of a process which started with allegations made in August 2014, and in included a substantial trial before a High Court Judge, any findings of fact made by the Judge and recorded in her oral determinations made in December 2016 and on 30 January 2017 must be set aside and must be disregarded in any future dealings with this family.

 

 

40.For our part, my Lords and I, rather than simply endorsing the agreed position of the parties, had, reluctantly but very clearly formed the same view having read the note of the 30 January judgment and having regard to the subsequent failure by the court to engage with the legitimate process of clarification that the Judge had, herself, set in train

           41.Before turning to the question of what lessons might be learned for the future and offering some guidance in that regard, a formal apology is owed to all those who have been adversely affected by the failure of the Family Justice system to produce an adequate and supportable determination of the important factual allegations in this case. In particular, such an apology is owed to T, her father and her mother and her younger sister X, whose own everyday life has been adversely affected as a result of professionals justifiably putting in place an intrusive regime to protect her from her father as a result of the statement of the Judge’s conclusions 16 months ago.      

 

    

The Court of Appeal were asked to give some clarifying guidance in relation to the issue of what happens where the parties ask (as they must) for the Judge to clarify flaws in the judgment and after a period of time the Judge has not done so. For a start, when does the clock for the appeal start to tick? After judgment, or after the request for clarification, or after receipt of such clarification?

 

 

 

42.Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.

 

 

43.The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.

 

 

44.The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.

 

 

45.Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.

 

 

Whilst the Court of Appeal say that because of the administrative nightmare that is obtaining an approved transcript, they will accept an agreed note from the lawyers I wonder how on earth that is going to work with cases involving only litigants in person (eg about 90% of private law proceedings)