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“And all the pieces matter…”

 

 

 

This is a Court of Appeal case where a Judge having heard a 3 day hearing about an alleged fracture to a 3 year old’s arm ended up giving an oral judgment at 4.30 pm on the third day, that lasted until 6.45pm.

S (A Child: Adequacy of Reasoning), Re [2019] EWCA Civ 1845 (31 October 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/1845.html

 

(By the way, the Court of Appeal don’t title a case “Adequacy of Reasoning” and then conclude ‘yes, it was perfectly adequate’…)

 

The judgment did not explain the reasoning for the judicial findings and was sent back for re-hearing.

 

As the Court of Appeal say in the judgment

 

34.I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge’s clarification at [89]. I would also accept that a judgment must be read as a whole and a judge’s explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge’s conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.

 

Thus giving me the opportunity to make a Lester Freamon Wire reference in the title, yay.

 

The Court were sympathetic to the pressures on the Judge

 

 

 

 

2.As we told the parties at the end of the hearing, this appeal must be allowed. In reaching that decision, we do not overlook the reality. Judges are encouraged to give extempore judgments where possible and appeals will not succeed simply because matters might be better expressed with the luxury of extra hours of preparation or because judgments may contain imperfections. What matters is that the parties know the outcome and the reasons for it. Where the essential evidence has been considered and the decision has been adequately justified, that will do. In this case however, it did not happen. Despite the judge’s efforts, the parties were at the end of the judgment unsure what she had decided about the two main issues in the case. Clarification was sought. It to some extent makes the judge’s intentions clearer but too many actual or arguable inconsistencies remain and important conclusions are inadequately explained. There will regrettably have to be a rehearing.

 

The Court of Appeal give Judges in a similar position an out

 

The questions that the judge therefore had to ask were these[1]:

 

 

 

 

(1) Had the local authority proved that the injuries were inflicted as opposed to being accidental?

 

(2) If the injuries were inflicted, who had the opportunity to cause them?

 

(3) Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional ‘known perpetrator’ finding)?

 

(4) If only two people (the mother and Mr C) could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an ‘uncertain perpetrator’ finding).

 

(5) Once these questions had been answered, had it been proved that the mother had failed to protect S from being injured or covered up what she knew about how he was injured?

4.Unfortunately the judge did not approach matters in this way.[2] Once she had decided to give the parties her decision that day, it would have been better if, rather than delivering a 30 page judgment under time pressure, she had simply set out and answered the necessary questions and given her essential reasons in a few additional lines. This is in any event a useful discipline, particularly where a party is unrepresented. Everyone knows exactly what has been decided and why. The full decision could follow, either then or at a later date.

 

It seems from my reading that it was fairly clear to see that the Judge thought the fracture was deliberately caused, and that the mother’s partner had been less than frank in his evidence and account, but having said that the Judge thought it was likely that the child was injured in the care of mother’s partner, Mr C, the Judge doesn’t really explain how she went on to find that she could not identify a perpetrator and found that it was either mum or Mr C.  Which explains why the mother appealed.

 

32.In Re N-S (Children) [2017] EWCA Civ 1121, McFarlane LJ said this:

 

 

 

“30. The need for a judge to provide an adequate explanation of his or her analysis and the reasoning that supports the order that is to be made at the conclusion of a case relating to children is well established. Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and others judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead. In addition, of course, inadequate reasoning is a serious impediment to any consideration of the merits of the judge’s decision within the appellate process.”

 

An important point arises that the Court of Appeal asked for a transcript of the hearing but that

the court tape was such poor quality that none of the evidence or judgment (except the evidence of Dr Watt, given by video link) could be transcribed.[3] The advocates agreed a note of judgment which was amended by the judge and handed down electronically on 12 June 2019.

About suesspiciousminds

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

3 responses

  1. The focus has apparently been on whether there is evidence of non-accidental injury and, if so, who may have been responsible. However, during the past year social workers have had plenty of time to make their own assessment of the situation and form a view about the child’s welfare needs. So is it possible that, by the time of the next hearing, the Guardian and/or Children’s Services would be in a position to offer further information that would help the judge reach a sound decision?

  2. Just a small correction:

    It isn’t made entirely obvious from the judgment but this was in fact a 4 day hearing (20-23rd May) and submissions and judgment were on day 4. The judgment refers to evidence over 3 days but there was actually a fourth day.

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