It’s a well-worn phrase that ignorance of the law is no excuse, but now we have the Court of Appeal confirming that if a parent is having to construct their appeal in person without the benefit of legal representation, it is not an excuse for procedural flaws.
Re D (Children) 2015
In this case, which was an appeal by the Local Authority arising from the parents successful appeal to His Honour Judge Plunkett who overturned a Care Order and Placement Order in relation to their youngest child, those orders having been made by a District Judge Maughan.
The bare facts of the case are quite simple. The parents had five children (now six) and the four oldest children had made serious allegations of physical abuse by the parents. Care proceedings began and all five children were removed and placed in care. The older children, ranging in ages from fifteen to twelve had “Voted with their feet” and returned to the parents care by the time the Court came to make final orders. Those four children were made subject to Supervision Orders. The youngest was made the subject of a Care Order and Placement Order (hence adoption being the plan)
A year later, the parents made an application to revoke the Placement Order. His Honour Judge Plunkett, looking at the case decided that what they really intended to do was to appeal against the order. They had no lawyers and they never actually lodged grounds for appeal or a formal application.
His Honour Judge Plunkett had been understanding about this. The fundamental issues for the appeal were that the older children had substantially retracted their allegations (was this fresh evidence?) and also that the District Judge had not given a judgment about why the older children had not been called to give evidence.
There ought to have been a three stage process here
1. Should the parents be able to appeal out of time, it being a year after the order
2. Should they have permission to appeal
3. Determination of the appeal
In the event, because of the blurred nature of the hearing, the LA and Guardian had thought that the Judge was considering part 2 only, but the Judge had considered that he was determining the appeal itself, and he set aside the Care Order and Placement Order and directed a re-hearing.
There are a few important issues that this raises. The first is the headline – to what extent does or should a Court grant leeway to failures in technical or procedural matters because parents (who would have wanted lawyers but couldn’t have them because of legal aid rules) were inexperienced and unknowledgeable about the process?
- Although the parents were acting as litigants in person when they instigated the process that became the appeal in L’s case, and some procedural latitude may be justified to accommodate such a litigant, the appeal procedure established by FPR, Part 30 is neither complicated nor onerous. It simply requires pleaded grounds of appeal, permission to appeal granted on stated grounds followed by the determination of the appeal on those grounds at a hearing. A substantial (and therefore impermissible) departure from the Part 30 requirements may well establish a situation in which one or more of the parties is denied a fair hearing.
- In relation to the appeal in L’s case, the process adopted by HHJ Plunkett did not come close to that which is required by FPR 2010, Part 30. The D11 Notice filed by the parents did not contain any grounds of appeal, other than the bare assertion that the children had retracted allegations. The Notice was stated to be challenging the judge’s decision regarding L’s adoption and the judge’s refusal to allow the parents to apply to revoke the placement order (ie the 2014 determinations) whereas the judge moved on to allow an appeal against the order made on the 2013 fact-finding hearing. Other than to note the point, at no stage did the judge engage with the fact that this un-pleaded ‘appeal’ was over a year out of time. The grounds upon which the judge eventually came to allow the appeal emerged in the process of free flowing to-and-fro communication between the judge and counsel during the hearing on 21st November.
(Given that I have encountered many family lawyers who have no idea of the Ladd v Marshall test for fresh evidence on appeal, I think the Court of Appeal rather overstate the simplicity of the appeal process here…)
- At this stage in my judgment it is right to stress the very clear view that I have formed from reading the transcript of the hearing of the 21st November which is that all parties, but particularly the judge, were motivated by the best of intentions. The discourse between all three counsel and the judge demonstrates a cooperative and sensible approach which was initially designed to assist the judge in absorbing the background detail of the case. This laudable spirit of positive cooperation between Bar and Bench should rightly attract praise, particularly in the context of a family case, but the manner in which this process was allowed to develop and then occupy the entirety of what the judge apparently considered was the hearing of the full appeal must inevitably also attract criticism in this case. The discourse between counsel and the court, which ran throughout the 21st November hearing, lacked any structure in the context of an appeal. No grounds of appeal were ever properly identified. The judge did not receive any submissions from any of the parties (even the appellant parents) on the topic that he went on to identify in his judgment as the main ground of appeal. There was no clarity, indeed there was clear confusion, as to the stage that the proceedings had reached and whether the court was considering permission to appeal or the appeal itself.
- Although litigants in person as applicants for permission to appeal have always been a feature of appellate justice, in modern times in family cases the litigant in person applicant has become the norm. Circuit judges, High Court judges and Lords Justices of Appeal are regularly required to process and analyse applications for permission to appeal in family cases by litigants in person. Such applications inevitably lack the forensic focus and legal analysis that would be commonplace if the application were made by a lawyer. There is, however, a danger that the judge may become drawn into the process of analysing the case to see if there is some thus far un-noticed and un-pleaded merit in a potential appeal that he loses sight of the structure of the appeal process and his or her role within that structure. It is my view that that danger became a reality in the present case. In seeking to unpick the process in the lower tribunal in order to identify whether matters had gone awry there, the judge presided over a process which, in the end, was neither fair nor effective.
- I have already described the appeal procedure established by FPR 2010, Part 30 as neither complicated nor onerous. Part 30 is similar in structure to CPR 1998, Part 52 which governs civil appeals to the Court of Appeal. It is a statutory requirement that family appeals in the family court or the High Court are conducted by adherence to the Part 30 provisions [FPR 2010, r 2.1]. The short and trite point therefore is that appellate judges hearing an appeal in the family court are bound to apply the provisions of Part 30. I would, however, go further and hold that, rule or not, utilisation of the simple structure of Part 30 is likely to assist the parties and the judge to process a challenge to a first instance decision in an effective and straight-forward manner. The three core elements – grounds of appeal, permission to appeal and appeal hearing – should enable all involved the proceedings to know with clarity what the issues are and what stage the process has reached at any particular time.
- Adherence to the requirements for the appeal notice to state the grounds of appeal [FPR, r 30.6] and for there to be no amendment of an appeal notice without the permission of the court [FPR, r 30.9], rather than being arid and empty procedural stipulations, provide both flexibility and clarity to enable the basis of an appeal to develop (as was the case on 21st November before HHJ Plunkett in the present case) but, at the same time, ensure that at each stage all those involved know what is, and what is not, a live issue that falls to be addressed within the appeal. If permission to appeal is granted on a basis outside the pleaded grounds, then those grounds should be amended by permission under r 30.9 and the appeal can proceed with all parties fully aware of the situation.
- In R (Dinjan Hysaj) v The Home Secretary  EWCA Civ 1633 my Lord, Moore-Bick LJ, giving the main judgment in a combined appeal relating to applications for extensions of time under the Civil Procedure Rules, Part 52 (relating to appeals), considered whether or not the requirements of the rules fell to be applied differently where the party concerned was acting as a litigant in person. At paragraph 44, my Lord said this:
“The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. …. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.’
That approach, with which I am in full agreement, must apply to family appeals just as it does to all other forms of civil appeal.
- The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment. Ensuring that a litigant in person’s appeal is established in a manner which is compatible with the rules, that the grounds of appeal are accurately drawn to include the points that the court is going to be asked to consider on the permission application and that all parties know what stage in the process the application has reached, are steps that are each likely to support, rather than hinder, the litigant in person in their interaction with the court and the other parties.
- It would, thus, have been perfectly straightforward for HHJ Plunkett to ensure that the Notices of Appeal were amended once he had become sufficiently concerned to consider that an appeal might succeed (a) against the 2013 decision, which was not a pleaded target of the Notice of Appeal, and (b) upon a basis outside the currently pleaded grounds of appeal. The failure of the judge to ensure that the pleadings kept pace with his developing thoughts, much more than simply being a slip in sticking to the rules, led in this case to a process which was unclear and unfair to the parties and gave rise to genuine confusion (as evidenced by the supplemental submission filed by the local authority and the guardian).
It was this somewhat blurred process that led to everyone neglecting the first stage of the process – should these parents be allowed to make an application to appeal out of time, the order in question having been made a year earlier?
- The lack of due process also caused the judge to by-pass the need to consider whether or not to extend time to permit an appeal against the fact-finding decision nearly 12 months prior to DJ Maughan deeming the parents’ application to be an application for permission to appeal. In the present case the parents had been legally represented at the fact-finding hearing, yet the issue of calling any of the children to give oral evidence had not been raised with the district judge and it was not, apparently, considered to be a matter to be brought on appeal immediately following the fact finding hearing. The question of whether the parents should be given an extension of time a year later to bring the point by way of appeal therefore plainly arose. In the absence of a process that required the parents’ appeals on this point to be properly pleaded, the issue of an extension of time, it would seem, never sufficiently crystallised so that it was addressed by the parties or the judge.
The issue that had really tipped the appeal before His Honour Judge Plunkett was his view that where the allegations were made by children, it was incumbent on the Court to raise and consider whether they should be called as witnesses. None of the parties had ever asked the Court to call the children or asked for a ruling, but His Honour Judge Plunkett considered that there was a duty on the Court to do so, whether or not it had been expressly raised.
This is a very important point, and His Honour Judge Plunkett set it out in this way:-
i) Where, as here, the threshold facts relate entirely to complaints from the children, ‘any court … is obliged to consider whether children should give evidence’;
ii) This is not dependent upon a party making a specific application for oral evidence, the court is obliged to make such a determination and to record it;
iii) There is no record of the district judge having made any determination on the issue;
iv) If the district judge did not consider oral evidence from the children then the hearing is unlikely to have been Article 6 compliant;
v) In the alternative, the district judge in any event failed to analyse her approach to the hearsay nature of the children’s complaints.
The Court of Appeal agreed with His Honour Judge Plunkett that the issue of the children’s evidence was important, and even perhaps that it would be good practice for a Judge to consider it even if the parties had not made such application. Where they disagreed was that a Judge who did not do so had erred in law and that a failure to examine matters of their own motion would be a basis for an appeal.
- I am entirely at one with the judge in identifying the potential importance of the issue of children giving oral evidence in a case such as this. A judge who adopted the practice that he describes would be beyond reproach and would have demonstrated a sound and sensible approach to the evidence. Where I differ from the judge is in his elevation of this aspect of good practice to a free-standing obligation upon the court, breach of which establishes, almost of itself, that the whole fact finding hearing was conducted in breach of Article 6.
- No authority, either domestic or ECHR, is cited for this principle. The judgment of the Supreme Court in Re W describes how the task of evaluation is to be undertaken, but their Lordships do not state that such an evaluation is a requirement in every case where key evidence arises from a child or young person. The nearest that the judgments in Re W come to the point is at paragraph 31 in the judgment of Baroness Hale SCJ:
‘Finally, we would indorse the suggestion made by Miss Branigan QC for the child’s guardian, that the issue should be addressed at the case management conference in care proceedings or at the earliest directions hearing in private law proceedings. It should not be left to the party to raise. This is not, however, an invitation to elaborate consideration of what will usually be a non-issue.’
My reading of that paragraph is that it is no more than an endorsement of counsel’s suggestion of good practice; it does not establish a legal obligation in every case, breach of which will, or is likely to, render the whole proceedings unfair. Such an approach is also in line with the observation of Black LJ in Re B (Child Evidence)  EWCA Civ 1015 at paragraph 29:
‘The Supreme Court [in Re W] did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be a conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her.’ [emphasis added]
- For my part I consider that the judge has overstated the position and has done so without the support of any authority. Whilst the approach taken by the district judge to the children’s complaints must fall to be considered as part of an analysis of the proceedings as a whole in the context of any fresh appeal, this one aspect, taken in isolation, did not of itself establish a breach of Article 6 as a matter of law and justify allowing the appeal on that ground alone.
For my part, I can see the ambiguity on this point, and I can see why His Honour Judge Plunkett considered that the failure by the DJ to explicitly consider whether the case could be properly resolved without the children’s evidence and whether for article 6 purposes the children should have been called (or at least weighed up those issues) was a fatal one.
However, this is now cleared up by the Court of Appeal. There isn’t a requirement on the Court to consider whether the children should give evidence UNLESS they are invited to do so.
I do wonder, having never met either His Honour Judge Plunkett * or District Judge Maughan, how the judicial tea and biscuits have gone down in Birmingham. I am imagining DJ Maughan stretching casually and remarking “Oh, I see on that case where you overturned me and said I’d got the law wrong, it turns out it was you who had got the law wrong”
(I’m sure that hasn’t happened and that all involved are much more grown up than I would be in those circumstances. Reading this, I think it a bit Schroedinger’s Cat again – I think both of them wre sort of right and capable of being right, and it was only when the Court of Appeal explictly ruled on it that either of them became right or wrong)
*It is possible that I have met HH J Plunkett whilst he was at the bar, but as I don’t know his forename, I could not now say either way.
The Court of Appeal allowed the appeal and sent the matter back for re-hearing. It is a good job that this was Birmingham and not one of the smaller Courts in the country, because a smaller Court might have been running out of judges to hear the case.