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DAM (I wish I was your lover)



An appeal about the structure of a judgment and whether it was sufficiently deficient to warrant overturning the decision (I’m sure that combination of italicised words is already making David Burrows writhe in agony…. )


Re DAM (Children) 2018


(There are obvious alternative jokes about the way the case name sounds if you read it aloud, but you know me and pop music, I wasn’t going to be able to resist a Sophie B Hawkins reference)


But obviously, beware the eyes that paralyze



The decision being appealed was from HHJ Tolson QC.   The lead Judge in the Court of Appeal was Jackson LJ .   (If you ARE being appealed about the manner in which you construct your judgment, you probably would not elect Jackson LJ to be critiquing your judgment, in much the same way as you would not want Rodin turning up to your pottery class to tell you if your bodged-up clay ashtray is any good)



5.Judges hearing care cases in the Family Court are engaged in one of the most difficult of all judicial tasks. The decisions are of huge significance for children and their families. The evidence is often difficult and distressing, and the level of emotion high. Achieving good case management and timely decision-making, not just for the children in the individual case but for all the children who are awaiting decisions, is a demanding challenge for the specialist judges who undertake this work.



6.In every care case, the Children Act 1989 and the Human Rights Act 1998 require the court to address a series of questions. What are the facts? Has the threshold been crossed? If so, what order is in the child’s best interests? Is that outcome necessary and proportionate to the problem? There is much authority from the appeal courts about each of these questions but at its simplest every valid decision will answer them.



7.It is in the judgment that the judge’s reasoning is found. There is no one correct form of judgment. Every judge has his or her own means of expression. Different cases may call for different types of judgment. Some judgments will be given at the time and others will be reserved. What is necessary in every case is that the judgment should be adequately reasoned: Re B-S [2013] EWCA Civ 1146 at [46]. That is a matter of substance, not of structure or form: Re R [2014] EWCA Civ 1625 at [18]. The judgment must enable the reader, and above all the family itself, to know that the judge asked and answered the right questions.



8.This is not to say that the structure of a judgment is irrelevant. A judgment that lacks structure or is structured in a confusing way makes the judge’s reasoning harder to follow and may raise the possibility that the process by which the decision was reached was faulty. Inevitably, that increases the possibility of an appeal.



There was an educational psychologist instructed in the case who seems to have had an idiosyncratic approach to her role


Dr Rothermel’s approach: – The judge described this as the most bizarre aspect of the matter. Having filed her lengthy report, she was directed on 18 July to provide copies of her notes and correspondence. She said that would take six hours and sought payment for it, having already exceeded her budget. She was then directed to bring the documents to court on the first day of the hearing. They amounted to more than a hundred pages of, in particular, email exchanges with the mother. The other parties made extensive criticisms of Dr Rothermel, and the judge summarised the material as revealing her to be an expert who had strayed far beyond her limited brief, advising the mother on the presentation of her case, gathering evidence for her and, when giving evidence, being an advocate for home education and for the mother. She disposed of the key elements of her instruction in what the judge described as a few bland lines.




36.The grounds of appeal included the contention that the judge was wrong to reject the evidence of Dr Rothermel as worthless in its entirety, and to conclude that the children had not been educated at home. This argument was not developed by Mr Twomey. In my view, the judge’s verdict on Dr Rothermel’s contribution was fully justified, and his finding of fact about the children’s lack of education at home could not be disturbed in this court.


Fundamentally, the appeal was based on the assertion that the trial Judge had wrongly approached the case as one that was decided on threshold, that having found threshold met he swiftly ruled mother out and announced his decision on orders and AFTER that, dealt with welfare matters including the welfare checklist and briefly.



33.Mr Twomey QC and Mr Boyd start their submissions with an analysis of the way the judge structured his judgment as showing that he had fallen into substantive error. They make these undeniable observations:





(1) The judge stated that the key to the case lay in the threshold criteria. [48]


(2) Having found the threshold to be made out [61], he immediately eliminated the mother [62] and announced his conclusion, stating that there was no other realistic option but foster care for D and A [63, 65].


(3) He did not carry out any welfare assessment, by balancing the advantages and disadvantages of placements at home or in foster care. He did not refer to the welfare checklist until [73], long after he had stated his decisions, and in doing so, he stated, “I check my conclusions against the welfare checklist.”


(4) When identifying factors in the welfare checklist, he did not mention (g), the powers of the court, such as an interim or final care order with placement at home, or injunctions or undertakings to ensure schooling and medical care, perhaps as conditions to a supervision order under Schedules 2 or 3.


(5) He made no proportionality crosscheck.

34.As a matter of law, Mr Twomey submits that the use of the welfare checklist as an afterthought is not compliant with s.1(4), which requires the court to have regard to the matters in s.1(3) when it “is considering” whether to make a care order. It must, he argues, be considered before a decision is reached, not afterwards. He also draws attention to the encouragement given by Baroness Hale to judges to address each of the factors in the welfare checklist in any difficult or finely balanced case so as to ensure that no particular feature of the case is given more weight than it should properly bear: Re G (Children) [2006] UKHL 43 at [40].



35.In an ambitious submission, Mr Twomey argued that the court was not entitled to make a care order separating the children from their mother without being satisfied that “nothing else will do”.


[For those who are not fluent in Judge, ‘ambitious’ here is not a compliment]


The Court of Appeal don’t explicitly mention Re B 2013, and the words of Lord Neuberger, which are what sets that particular hare running (in my respectful view)



  1. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By “necessary”, I mean, to use Lady Hale’s phrase in para 198, “where nothing else will do”. I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC.


  1. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in “exceptional circumstances”, and that it could only be justified by “overriding requirements pertaining to the child’s welfare”, or, putting the same point in slightly different words, “by the overriding necessity of the interests of the child”. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further


(Now of course in Re B, the care plan was adoption, and it might well be that those passages are intended to be read as ‘a care order where the care plan is adoption’, but the bare language is “should only have made a care order if satisfied that it was necessary to do so in order to protect the interests of the child and by necessary I mean ‘where nothing else will do’ “ )


I think there’s at least an argument to be had on that aspect. I have seen a Parker J case in which it was posited that this formulation applies to interim care orders as well, which I think goes too far.


The Court of Appeal don’t agree




(5) I reject the argument that a court considering whether to make a care order has to be satisfied that “nothing else will do”. A care order is a serious order that can only be made where the facts justify it, where it is in the child’s interests, and where it is necessary and proportionate. But the aphorism “nothing else will do” (which, as has been said, is not a substitute for a proper welfare evaluation and proportionality check) applies only to cases involving a plan for adoption. That is clear from the case in which it originated, In re M (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which concerned an application for a care order with a care plan for adoption. It is clear, where it is not explicit, that all the justices were addressing a situation involving the severance of the parental relationship altogether, and not one involving physical separation under a care order, where the parent retains parental responsibility. That is confirmed by the summary given by the President in Re B-S:


“22. The language used in Re M is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re M paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.” [my emphasis]


I may be utterly wrong about the impact of Lord Neuberger’s words, but it is a shame that they weren’t considered explicitly, because that’s what gives rise to the suggestion that any order that permanently separates a child from birth parents has to be measured against that necessity and ‘nothing else will do’ yardstick.



On the other matters, the Court of Appeal decision is as follows:-


41.Despite the neat way in which the mother’s case has been presented, my clear conclusion is that the judge’s findings of fact, set out at paragraph 29 above, amply satisfy the threshold for making public law orders and adequately underpin the welfare decision. Taking full account of the matters that appear below, it has not been shown that the judge was wrong to conclude that the mother’s parenting falls so far short of what the children need, and that her approach is so ingrained and unchangeable, that care orders were necessary. He had an excellent opportunity to assess the mother’s personality and behaviour during the course of the proceedings. Nor is it irrelevant that there is now no challenge to the judge’s decision that M, who had grown up for 4½ years in her mother’s care, should remain with her father. The home circumstances that justified that decision were shared by the older children.



42.Dealing specifically with the criticisms of the judge’s approach, set out in paragraph 33 above:




(1) It was unwise of the judge to characterise the decision as one that turned on the threshold findings. The threshold is concerned only with harm, while the welfare checklist addresses a much wider range of factors. There are cases involving very serious abuse where the threshold definitively determines the outcome, but this was not one of them. Nonetheless, despite the way the judge expressed himself, his decision did not in fact rest on the threshold alone, but on all the welfare considerations mentioned in the judgment.


(2) The term “realistic options”, deriving from cases such as Re B-S [2013] EWCA Civ 1146, ensures that time is not wasted on outcomes that are merely theoretical, so that attention can be focused on the genuine possibilities. In this case, the realistic options for D and A were placement at home or placement in foster care. The fact that one was discarded in favour of the other made it a rejected option, not an unrealistic one, and the judgment, read as a whole, shows that this is how the judge in fact proceeded.


(3) In the almost 30 years since it was devised, the ‘welfare checklist’ has stood the test of time and its value to decision-makers, as described in Re G, cannot be overstated. It is obligatory to have regard to its contents when considering what order should be made. That obligation will be discharged if it is evident that in substance all the relevant, significant welfare factors have been taken into account. I do not accept that there is an obligation to articulate a checklist analysis before announcing a decision. However, to omit any reference to the substance of the checklist, or to relegate the exercise until after the court has stated its conclusion, carries risks of the kind seen in this appeal.


(4) The absence of a point in the judgment where the judge can be seen to have drawn together the welfare factors for comparative evaluation is an undoubted weakness. However, analysis of the judgment as a whole shows that the judge did evaluate all the significant welfare factors, although not in a methodical order that would have made his reasoning easier to appreciate.



(6) To continue, I do not accept Mr Twomey’s submission that the judge did not consider the powers of the court, as required by checklist factor (g). He dealt with that matter squarely at paragraph 51 (see 31 above).


(7) I accept that the judge did not explicitly return to the issue of proportionality, but he clearly had it in mind from his self-direction and in my view his decision is not undermined by that omission.

43.I therefore conclude that the submission that the judge’s decision was wrong must fail.



The Court of Appeal did, it seems to me, consider that there were failings in the structure and approach of the judgment; but these were not such as to fatally flaw the judgment. A considered reading of the judgment answered all of the questions posited in the opening remarks in the appeal judgment and this piece.






44.I would also reject the submission that the decision was unjust because the form of the judgment amounted to a serious procedural irregularity. The judge gave a substantial judgment that, on close examination, adequately reasons his decision.



45.However, I am also in no doubt that permission to appeal was rightly granted. Had the judgment proceeded simply and methodically through the stages of the decision-making process, this might have been avoided. It should not be necessary for an appeal court to undertake a laborious explanatory exercise of the kind contained in this judgment. That can only affect the parties’ confidence in the decision. In the meantime, this family has been left in a state of uncertainty for a further four months and the costs of the appeal to the public purse have, we were told, amounted to some £37,000.


Unlawful killing




A very peculiar case and one in which leading counsel puts self in harms way in order to demonstrate breach of article 6 and succeed in appeal.


Re R (Children) 2018


In this case, the central issue related to


On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father


The father was arrested and the two children were removed into foster care. The father faced criminal trial and was acquitted of all charges. There was a finding of fact hearing in the High Court and the father was made the subject of a finding that “he had used unreasonable force and unlawfully killed the mother”


He appealed that finding, successfully.




5.The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.



6.The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.



7.The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.



8.Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:




“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. “

9.Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.



The father’s appeal was based on two major facets. Firstly, that the High Court had become very bogged down in criminal terminology when conducting the fact finding hearing (as a result of the word ‘unlawfully’ in the threshold finding sought, the defences to lawful killing – self-defence and loss of control, played a significant part in the case) and secondly that the timescales set down by the High Court for the preparation of father’s case were so short and unrealistic that it put the father in the position of having his very skilled and experienced representative feeling that she was not in a position to properly put his case.



(Being fair to the LA here – because threshold requires that a parent’s behaviour which caused the harm was ‘not being what it would be reasonable to expect’, they may well have concluded that the father if asserting that he acted in self-defence which was reasonable might have a basis for concluding threshold was not met and felt that they needed to establish a higher level of culpability on his part. It is very very tricky drafting threshold in a set of circumstances like this. I think I might have tested the water to see if something along the lines of “The children were exposed to an extreme incident of violence leading to the violent death of the mother, which would have been extremely frightening and distressing and which will be likely to have lifelong implications for their mental and emotional wellbeing” might have been accepted, but it is a lot easier to make that call in the benefit of hindsight)


The criminal bit first





31.For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.



32.Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:




“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”


Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

33.However, in the local authority Opening Note the following appears:




“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”


Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:


“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

34.More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.



35.Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.



36.On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.



37.For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.



38.Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.



39.In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.



Conclusions on that aspect



61.Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.



62.The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.



65.The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.



66.Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.



67.There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.



68.That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.



69.What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.



70.Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.



71.Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.



The fair trial point



The father was acquitted on 30th May 2017. The family Court had a directions hearing on 9th June 2017 setting the case down for a finding of fact hearing. The LA produced its schedule of findings sought on 26th June 2017 seeking (for the first time) a finding of ‘unlawful killing’ – the fact finding hearing was due to begin on 11th July – eleven working days later.


Eleven working days to effectively prepare a murder trial is obviously compressing realistic timescales considerably. Under protest from the father’s team, the Court granted a five day adjournment, giving effectively three working weeks for father to prepare. For a fact finding hearing involving 42 witnesses, from a standing start.





44.In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.



45.The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.



46.In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.



47.The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.



48.I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.



49.Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.



50.Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.



51.Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.



52.Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.



53.Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.



And in conclusion



72.Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.



73.An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.



74.Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.



75.It is of particular note that it was only in the local authority Opening Note, dated 11th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.



76.Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.



77.The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.





78.The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.



79.Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2nd December letter, given its importance in the case, is of real concern.



80.Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court



The Court of Appeal then give some specific guidance in relation to family Courts hearing allegations which have been tried in the criminal Court.



81.Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.



82.By way of summary, the following points are, in my judgment, clear:




  1. a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];


  1. b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established [paragraph 62];


  1. c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];


  1. d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].

83.Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.



84.The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:





‘Directions for a fact-finding hearing



  1. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –




(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;




(b) in order to provide a basis for an accurate assessment of risk;




(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or




(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).



  1. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –




(a) the views of the parties and of Cafcass or CAFCASS Cymru;




(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;




(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;




(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;




(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;




(f) the nature of the evidence required to resolve disputed allegations;




(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and




(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’

85.In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:




’36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.


  1. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –



(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;



(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;



(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;



(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and



(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.’

86.On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.



87.Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.



88.For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:




‘… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.’

89.The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.



90.Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.



91.At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined


The Court of Appeal did disagree as to whether a finding of fact hearing would be necessary at all (in a minority judgment) and how the Court at a re-hearing was to determine whether father’s actions were or were not reasonable (again, in a minority judgment). We may not have had the final word on this sort of thing.    (The minority judgment was suggesting that threshold akin to my earlier formulation – that regardless of culpability for the death of the mother, the emotional harm suffered by the children by witnessing her violent death was the real issue and thus a finding of fact as to culpability for death would not always be necessary. )



Sin is not valid legal currency

A mind-blowingly tricky case, involving hot-button issues on either side.

A mother and father have five children, ranging in ages from 3 to 13. The family are all part of the ultra-orthodox North Manchester Charedi Jewish community. The father left the family home in 2015 and became transgender, he now lives as a woman.

The ultra-orthodox Charedi Jewish community view the father’s actions as ones of choice, and as a sin, and he would be ostracised from the community. If the children were to spend time with their father, they also would be marginalised by their community.

The Judge at first instance, Peter Jackson J (as he then was), concluded that the children would not be upset or traumatised by their father’s transgender status and would cope with it, but that they would be harmed by being ostracised within their religious community. It was a difficult balance expressed eloquently :-

8.Peter Jackson J identified (judgment, para 166) fifteen arguments in favour of direct contact which he described as “formidable”. He could identify (para 168) only two factors that spoke against direct contact. Of the first, relating to the father’s “dependability”, he found (para 172) that “if it were the only obstacle to direct contact, it could probably be overcome.” That left only one factor, which he described (para 173) as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father.”

9.On this, his findings were as clear as they were bleak. He found (para 156) that:

“The children will suffer serious harm if they are deprived of a relationship with their father.”
10.Nonetheless he decided, as we have seen, that there should be no direct contact. He explained why. First (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.”

Then (para 181):

“I … reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”

And then this (para 187):

“So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact (emphasis added).”
11.We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?

The case went to the Court of Appeal.

Re M (Children) 2017

2.This is an appeal from a judgment and order of Peter Jackson J, as he then was, made in private law proceedings between the father and the mother of five children, whose ages now range from 13 to 3 years old. His judgment was handed down on 30 January 2017: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, [2017] WLR(D) 142. The judgment, which was necessarily lengthy, is freely available to all on the BAILII website, so we can be more limited in quoting from it than might otherwise be appropriate. We do, however, urge anyone who has occasion to read our judgment to read Peter Jackson J’s judgment first.

3.The order was made on 2 February 2017. It was expressed as being a final order. The judge dismissed the father’s application for direct contact (the children live with the mother). The order contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with “staged narratives” in age-appropriate terms, and a family assistance order under section 16 of the Children Act 1989, naming the children’s guardian as the relevant officer, to remain in force until 1 February 2018. The father sought permission to appeal; the perfected grounds of appeal are dated 17 March 2017. Permission to appeal was given by King LJ on 16 June 2017. On 27 October 2017, McFarlane LJ gave both Stonewall Equality Limited (“Stonewall”) and Keshet Diversity UK (“KeshetUK”) permission to intervene in the appeal, limited to making written submissions. On 10 November 2017, the father applied for permission to admit further evidence, which we admitted de bene esse.

4.The appeal came on for hearing before us on 15 November 2017. Ms Alison Ball QC and Mr Hassan Khan appeared for the father, Mr Peter Buckley for the mother, and Ms Frances Heaton QC and Ms Jane Walker for the children’s guardian. Ms Karon Monaghan QC and Ms Sarah Hannett filed written submissions on behalf of Stonewall and Ms Jane Rayson and Mr Andrew Powell filed written submissions on behalf of KeshetUK. At the end of the hearing we reserved judgment, which we now hand down.

The case in outline
5.The outcome of this appeal is of very great importance to the father, to the mother and the children, and to the ultra-orthodox North Manchester Charedi Jewish community in which the children have always been brought up. But in its potential implications this appeal is of profound significance for the law in general and family law in particular. For on one view it raises the question of how, in evaluating a child’s welfare, the court is to respond to the impact on the child of behaviour, or the fear of behaviour, which is or may be unlawfully discriminatory as involving breaches of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of the Equality Act 2010.

I suspect most readers have already formed a firm view as to what is the right outcome here – but I also suspect that not everyone will have the same firm view. It is decidedly tricky. For my part, I struggle to see how the views of an intolerant religious community should deprive the children of their relationship with their father (until such time as the children can make up their own mind about where their preferences lie), but I am mindful that I come to this as a wholly secular person who does not hold religious beliefs. Might I think differently about it if faith was a major part of MY life, as it clearly is for this family?

The judgment
12.Having thus introduced the issues which confront us, we turn to a more detailed analysis of Peter Jackson J’s judgment. After an Introduction (judgment, paras 1-11) and a section dealing with Terminology (paras 12-16), he set out a Narrative of events (paras 17-36), to which we refer the reader. For present purposes, there are only two matters we need to refer to. The first, (para 33) relates to the minutes of a “Team around the children meeting” held within the community in April 2016. Of these minutes, the judge made this observation (para 34):

“These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored.”

The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:

“In November [2016], on the first morning of the hearing, an unidentified member of the community posted this WhatsApp message:


Family [name]’s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them. We can’t afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent. Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.””
13.The judge then turned to the law (paras 37-56). There has been no challenge to his analysis.

14.Then in a long section (paras 57-142) the judge rehearsed the evidence. For present purposes we can be selective. In the course of setting out the mother’s evidence (paras 69-77), the judge said this (paras 73-74):

“73 The mother described the father as having been “severely ostracised” by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour’s children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that “the parent body are the school”. Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: “I uphold the British law within our faith.” If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.

74 The mother said that there is no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment. She said this, even though she knew that she and the children are entitled to legal protection against victimization. The schools would probably not throw out the children, but the environment would become hostile. The parent body would not allow their children to play with the children, and no one can tell others how to bring up their own children. “They will protect their children from contact. They wouldn’t want my children to suffer and will have every sympathy, but their own children will come first.” The children’s next schools would not have to take them, and could just say they were full. “Are we going to get the whole community to tell them off?” The mother can see the children being rarely invited to family events and festivities because people would be nervous about what they would say. There would be extreme supervision and the children’s participation would be kept at a very basic level. Already, A is being asked questions and is reluctant to commit himself fully within his peer group. This, said the mother, is “the reality – it’s who we are”.”
15.Particularly striking in this context, was the evidence of Mrs S, a very experienced foster carer who identifies herself as an observant modern Orthodox Jew, of whom the judge said this (paras 108-111):

“108 Mrs S, who clearly has a close knowledge of the workings of the community, described its unhappiness at children being fostered outside the community, though it acknowledged that she was a preferable carer to any of the available alternatives.

109 Mrs S provided two striking instances of the way in which children exposed to ‘outside influences’ will be ostracised. In 2015 Child A, a 15-year-old girl who had been sexually abused in the community was placed in her care. The girl was not invited to Hanukkah gatherings by her classmates. When Mrs S challenged the mother of one of the girl’s close friends about this, she explained that she could not risk her daughter hearing about “things” as children in the community were kept innocent and sheltered. When Mrs S described the distress that these actions were causing, the mother did invite the girl to her house, but only under strict supervision. The child lost her best friend and all her childhood friends. She now attends a different school and has absolutely no association with her former social circle.

110 Mrs S spoke of Child B, whom she had fostered from another ultra-Orthodox community. The child, aged 14, had been sexually and emotionally abused within her family and the wider community since the age of 11. She had made statements to her school about her abuse. The response had been to put her on a plane out of the country and invent a story to explain her absence. When she was returned to the country and placed in foster care, “all hell broke loose”. Mrs S said that she personally had a broad set of shoulders but that it had been a struggle to protect the child at the beginning. She was rejected by her family and no longer allowed to talk to friends. As Mrs S put it, “It’s the knowledge that is the issue.”

111 Mrs S freely described these as “awful case studies”, which she related to assist the court to understand that this response was the norm where religious culture, identity and laws are breached. She said that they were not “standout cases”. At the beginning of her fostering career, they would have had her “up in arms”, but she now saw this behaviour as being unchangeable – by local authorities, foster carers, courts and the law. “They will find a way around it.””

Of the cases described by Mrs S, the judge said this (para 178(3)-(4)):

“The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people … They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).”
16.Also of importance, as we shall see, in influencing the judge’s thinking, was the evidence of Rabbi Andrew Oppenheimer (paras 90-102). This part of the judgment requires to be read in full. Here we merely quote the salient passages. First (paras 91-92):

“91 Rabbi Oppenheimer describes Charedi communities as “warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives … The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of the country) and place the family and its welfare at the heart of life … Allegiance to the lifestyle … means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

92 Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5).”
17.Next (paras 95-96):

“95 In regard to the attitude of the community, Rabbi Oppenheimer writes:

“Where a person decides to take action likely to be irreversible to transgender, Ultra-Orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws. Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the sheltered position of the community from the standpoint of open society. Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.

The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible. If the family of the transgender person nevertheless seeks, or indeed is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children. The impact on the family in such circumstances in terms of social isolation will be devastating.

In considering the best interests of the children the obvious conclusion from the discussion above is that the children of an Ultra-Orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances. It will no doubt be argued against this approach that it is cruel, lacking in tolerance, unnecessary and denies the rights of the father. But Torah law (Halacha) has the same approach to English Family Law in this type of situation, regarding issues of residence and contact, that the interests of the children are paramount. In other words the father is expected to give precedence to the needs of the children over his own needs.”

96 In his oral evidence, Rabbi Oppenheimer remarked that “ostracise” was perhaps not the best word to use for a process that would not be organised but more subtle and inevitable – “it would be so much more”.”
18.Then this (para 97):

“He … asserted that under the Torah and in reality a person is considered to have a choice, albeit a difficult one, as to whether they become transgender. If they do, they choose to place themselves outside the embrace of the community. In Torah law, to be gay or transgender is to be a sinner. Even though it may be looked on with compassion, and some people may extend the hand of friendship, that does not alter its unacceptability. The mother could not remain married to a person who made that decision. She should still seek in a constrained way to promote respect for the father but at the same time to protect the children from the consequences until they are old enough to deal with them. Young people cannot deal with these issues without undermining their faith. There is too much of a conflict to understand. There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being. By educating children in the way of the Torah, they are brought up as upright people.”
19.And then, finally for present purposes, this (paras 99-101):

“99 Rabbi Oppenheimer explained that excluding ideas that might damage the development of children is “the price we pay – we limit ordinary social contact so that we transmit our spiritual ethos to the next generation”.

100 When pressed about the impact of ultra-Orthodox custom and practice in a case such as the present, Rabbi Oppenheimer replied with some warmth that this had nothing to do with emotions or feelings – it was contrary to Torah law for the children to be exposed to transgender. Further pressed as to the basis for this assertion, the Rabbi fell back upon the overriding consideration in Leviticus to be holy and to separate oneself from anything contrary to the Torah.

101 Indirect contact, on the other hand, would not, he thought, give rise to such a risk of ostracism, as it would not enable the children to have “a living relationship”.”
20.Pausing at this point there are two points which require emphasis.

21.The first is the community’s determination – what Rabbi Oppenheimer described as its “obligation to protect the children from finding things out that are likely to damage … their growth and spiritual well-being” – to shield its children from knowledge of and exposure to such matters as sexual abuse, homosexuality and transgenderism and, more generally, what Rabbi Oppenheimer called the “excesses of modern open society”; and to restrict its children from coming into contact with children who have such knowledge or have been so exposed.

22.The second is Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism: “it would not enable the children to have “a living relationship”.”

23.Peter Jackson J’s response to this was brisk (paras 179-180):

“179 In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

180 It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”
24.In striking contrast with Rabbi Oppenheimer’s evidence was that of Rabbi Ariel Abel (paras 78-83), who described himself as mainstream Orthodox and falling under the authority of the Chief Rabbi. He grew up in the North Manchester Charedi community and has experience of communities in London, Liverpool and Manchester at various levels of orthodoxy. The judgment (paras 80-81) summarised his evidence:

“Rabbi Abel emphasised the central importance of honouring one’s parents within Jewish law and tradition. He said that there is scarcely any circumstance in which the obligation to honour one’s father does not apply. Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists. He considered this aspect of the matter to have been left untreated by Rabbi Oppenheimer.

In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified. He contends that there is no valid reason why any person should plead ultra-Orthodox faith as a reason to disenfranchise a person in the position of the father. “There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life, physically, spiritually, emotionally and communally.” On the contrary, there is every reason to reunite parent and child as it is the well-being of the nuclear family and not the social preferences of the wider community that truly matter. He points to commentary by the noted encyclopaedist, the late Rabbi Waldenberg, in support of his contention that Orthodox Judaism, correctly understood, recognises the existence of, and to a certain extent accommodates, a number of non-binary identities, including transgender. He argues that the transgender issue cannot be ignored and that parents’ relationships with their children are inalienable.”
25.The judgment continues (paras 82-83):

“Rabbi Abel objected to the concept (introduced by Rabbi Oppenheimer) of the faith as a club from which people could be ejected, though he observed that this evidently happens. An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worst-case scenarios. This is a social cultural reality, not a valid Orthodox reason for separating children from parents. There is a lamentable habit of censoring. Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief. In his view, this should not be accommodated or excused in Jewish or English law. On the other hand, he had never heard of total ostracism in practice, provided the contentious matter was treated privately within the family, and not paraded before the community. However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help. What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester community. He argued that when it comes to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah. There are ways, and it can happen if there is a will. The issues are significant, but not insurmountable. The community is not monolithic, but multifarious. It will step back if proper arrangements are made by both parents. If the situation is unregulated, the community will take matters into its own hands. If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.”
26.We have set this important evidence out in full because it seems to us to hold out hope of a change. Rabbi Abel demonstrates that there exists what we imagine is a lively debate, perhaps within this thoughtful, law-abiding and intellectual community and probably Orthodox Judaism generally, of the issues to which transgenderism gives rise. Does it not provide some support for a conclusion in this case that the views which drove the judge are not universally inflexible?

So even within the religious community there was a deep schism about what the Torah says and what in practice might happen if the children were to see their father. Of course, the Judge dealing with the case didn’t have to deal with what position the ultra-Orthodox community SHOULD take, but what position they realistically WOULD take

30.The judge then turned (paras 143-161) to consider the welfare checklist. For present purposes, we need refer only to this (paras 156-157), which really encapsulates the dilemma confronting him:

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”
31.Finally (paras 162-191) the judge set out his Assessment and conclusion. He began as follows (paras 162-165):

“162 I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.

163 A great deal of time has been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. This is natural, given that it is the community within which the children live. However, Ms Ball QC and Ms Mann for the father argue that one must not look only through an ultra-Orthodox lens. I agree. Despite its antiquity, Jewish law is no more than 3,500 years old, while gender dysphoria will doubtless have existed throughout the 120,000 years that Homo sapiens has been on earth. Both sides of the question must therefore receive careful attention.

164 Faced with this intractable problem, it is not for the court to judge the way of life of the ultra-Orthodox Jew or of the transgender person. The court applies the law, and in this case its task is to identify the outcome that best upholds the children’s welfare while minimising so far as possible the degree of interference with the rights of all family members.

165 Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.”
32.He then (para 166) listed the fifteen “formidable” arguments in favour of direct contact to which we have already referred. In relation to the second factor identified by the guardian (see paragraph 28 above) he said this (para 172):

“… the father’s approach to contact would not be a reliable, static factor. It would be a variable amongst other variables. I share the view of the Anna Freud Centre and the Guardian that this must be taken into account when considering children’s welfare. It speaks for caution, but no more than that, and if it were the only obstacle to direct contact, it could probably be overcome.”
33.Turning to the “the central question of the reaction of the community if the children were to have direct contact with their father,” the judge (paras 174-176) summarised counsel’s competing submissions before expressing his conclusion as follows (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father. The evidence that was available before the hearing contained dire predictions, but no actual examples of ostracism. I pointed this out, and this led to a number of new statements being gathered, including significant evidence from the foster carer, Mrs S.”
34.He explained his conclusion (para 178) in twelve sub-paragraphs of which we quote the following:

“(1) It does not depend upon any view of what Jewish law is in relation to transgender, but upon what the community is likely to think it is and act upon. It may be that the humane and progressive views of Rabbi Abel and Mr Bernard will one day gain acceptance in the ultra-Orthodox communities, but I consider that in the present day the community in which the children live and go to school will, rightly or wrongly, defer to the stance described by Rabbi Oppenheimer and the authorities he cites.

(3) The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people (emphasis added).

(4) I cannot distinguish these cases in the way suggested by Ms Ball. They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).

(5) There is a consistent account from all those within the community of how it will behave …

(6) The father [and his witnesses] all accept to a substantial degree that this is what the community is like. Their thesis is that it can be managed or made to change.

(7) There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status (emphasis added). However, the fact that the practices may be unlawful does not mean that they do not exist.

(8) I was particularly impressed by the evidence of Mrs S, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproves.

(9) I was also struck by Rabbi Oppenheimer’s unyielding defence of the religious and social position as illustrating the stance that can be taken by educated persons.

(11) There is no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members, still less that significant change could be expected within these children’s timescale.

(12) In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.”
35.He continued (paras 182-183):

“182 And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

183 The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with … “a negative impact on how they function in the widest possible sense both now and in the future”.”
36.He added (para 185):

“These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.”

The Court of Appeal had some very difficult issues to consider

42.It is important at the outset to be clear as to why the court – the State – is involved in the present case. It is because the parents have been unable to resolve their family difficulties themselves, whether with or without the assistance, formal or informal, of the community, and because one of the parents, in this case the father, has sought the assistance of the court. The court cannot decline jurisdiction. And, as judges sitting in a secular court, we must necessarily determine the case according to law, in this instance the law as laid down by Parliament in section 1(1)(a) of the Children Act 1989: see Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 92-93.

They conclude that the case had to be sent back for re-hearing (note that they do not say that the father MUST have contact, just that the case needs to be re-heard )

Our reasons for disagreeing with the analysis of the judge
76.In our judgment, Peter Jackson J’s judgment is vulnerable on a number of grounds, all interlinked but which, for purposes of clarity and analysis, it is appropriate to keep distinct.

77.First, the judge, having arrived at his conclusion (judgment, paras 182-188), did not at that point step back and ask himself what, we think, were a number of highly pertinent questions. We have already touched on much of this, but it bears further elaboration. For example, he should, we respectfully suggest, have asked himself: how do I, indeed, how can I, properly accommodate this conclusion with my role as the judicial reasonable parent applying the standards of reasonable men and women today? Can I properly come to a conclusion dictated, as I have found (judgment, paras 34, 178, 181), by the practices of a community which involve discrimination and victimisation and where the community’s focus is as much on itself and the adults as on concern for the children or child welfare? Is it enough simply to proceed on the basis (para 185) that “These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this (emphasis added)”? Should I not directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court may have to consider drastic steps such as removing the children from the mother’s care, making the children wards of court or even removing the children into public care? Should I not directly and explicitly confront the mother and the community, which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory? And, not least, how can this outcome meet even the medium let alone the long-term needs and interests of the children? How can this order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live? The judge’s omission to address these questions seriously undermines, indeed, in our judgment vitiates, his ultimate conclusion.

78.Secondly, and in saying this we are very conscious of the forensic reality that this part of the case was not much explored before him, and he did not, of course, have the benefit of the submissions we have had from Stonewall and KeshetUK, we are bound to say it is very unfortunate that the judge did not address head on the human rights issues and issues of discrimination which plainly arose. His judgment recites though largely without analysing (judgment, paras 44-51, 53-56) various Convention and statutory provisions to which the father in particular had referred. But apart from the passages we have already set out, the judgment says virtually nothing else about these vitally important issues – no doubt, in this respect, reflecting the limitations of the arguments that had been addressed to the judge. This is a matter we return to below.

79.Thirdly, there is much force in the argument that the judge did not sufficiently explain why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact. Indeed, there is little discussion of the issue in the judgment. The judge recorded the mother’s position as being (judgment, para 9):

“The mother had been opposed to any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year. She opposes direct contact of any kind during their childhoods as that, she claims, will lead to the children and herself being ostracised by the community to the extent that they may have to leave it.”

We have already recorded (paragraph 22 above) Rabbi Oppenheimer’s views on the subject. The judge was pressed in argument (judgment, para 174) with what we think was the well-founded point, “It is not clear why indirect contact is said to be acceptable, while direct contact is not.” After all, as we have observed (paragraph 21 above), the concern of the community is to shield its children from knowledge of and exposure to such matters as transgender, and to restrict its children from coming into contact with children who have such knowledge or have been so exposed. Surely, from that point of view, indirect contact must carry with it precisely the same kinds of risk as direct contact. The judge did not address the point, merely saying (judgment, para 188) that, having refused an order for direct contact, “I will instead make an order for indirect contact. I see no reason why this should not take place four times a year.” We emphasise that this is not an argument against indirect contact; on the contrary, it is, it might be thought, an argument in favour of direct contact.
80.Fourthly, we think there is considerable substance in the complaint that, as Ms Ball puts it, the judge “gave up too easily” and decided the question of direct contact then and there and without directing even a single attempt to try and make it work. The judge recognised, by making the specific issue order directing preparation of “staged narratives”, that there was further work to be done by the guardian and the Anna Freud Centre. As Ms Ball asks rhetorically, and in our judgment there is substance in the point, why not defer a final decision on direct contact pending the outcome of that, and perhaps further, work, including work by the GesherEU Support Network about which the judge (judgment, paras 84-89) had heard evidence? Moreover, as we have already observed, why not first directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court might have to consider the drastic steps we have referred to? Why not directly and explicitly confront the mother and the community with the fact that its behaviour is or may be unlawfully discriminatory? And why not attempt, even if the prospects may have seemed forlorn, the kind of step by step process adopted by Her Honour Judge Rowe QC in Re X (Number 1: Religious Differences: Schools) [2014] EWFC B230, Re X (Number 2: Orthodox Schools) [2015] EWFC B237, and Re X (Number 3: Division of Religious Festivals) [2016] EWFC B91. In our judgment, the decision which judge came to was indeed premature.

81.It follows that, in substance, the father makes good all three grounds of appeal.

82.The parties were rightly agreed that if this was our decision it would not be appropriate for us to determine what the outcome should be. The matter will have to go back for a further hearing which, in the circumstances, will be before Hayden J. Precisely what the scope of that hearing should be will be a matter for the judge. We do not anticipate a rehearing of the very full evidence on the religious views which Peter Jackson J heard but otherwise leave the scope of the evidence at the rehearing to the judge. That said, we need to make explicit what ought to be clear enough already. What we say about the community is based on the evidence adduced by the parties to these proceedings and on the findings of the judge. The community are not parties and have had no opportunity to make representations. Our observations about the community should be read on that basis.

83.In view of the fact that, for the reasons set out earlier, we propose to allow this appeal and remit the case to the family court for reconsideration, it is unnecessary for us to address at length either the issues of equality law which may arise or the issues under Article 9 of the Convention. However, we hope that it will assist the family court in its reconsideration of the case if we set out some of the issues that may have to be addressed, dealing first with equality law and then with Article 9.

The Court of Appeal then did address the equality issues

95.It is well-established on authority that discrimination which is motivated by a religious belief (however sincerely held and even if the discrimination is mandated by that religious belief) does not make discrimination under the Equality Act lawful: see Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para 35 (Lord Phillips of Worth Matravers PSC) and para 65 (Lady Hale JSC). See also Regina (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, para 58, where Lord Walker of Gestingthorpe cited with approval what had been said by Mason ACJ and Brennan J in the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, at 136:

“Religious conviction is not a solvent of legal obligation.”
96.In the present case we are anxious that no assumption should wrongly or unfairly be made that any school attended by the children concerned has acted unlawfully or will do so in the future. As we have already mentioned, if a school were to ostracise a pupil on the ground of his or her father’s transgender status, that would be likely to amount at least to the imposition of a “detriment” on that child which is unlawful under the Equality Act. The courts of this country expect schools to comply with their legal duties under that Act as well as generally.

97.Nevertheless, we are equally concerned that, should there be action by a school which is unlawful under the Equality Act, the courts of this country should not, as a matter of public policy, simply treat it as a factor to be weighed against permitting direct contact between the father and children. To do so would, in our view, be contrary to the rule of law.

98.Accordingly, when this case returns to the family court, we would expect the judge to consider very carefully:

i) whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and

ii) to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what are the best interests of those children

115.When the present case returns to the family court we anticipate that the court will wish to scrutinise with care the suggested justification for the apparent discrimination which the father faces on the ground of her transgender status, not least to ensure that the court itself does not breach its duty under section 6 of the HRA.

What about the issues about religious discrimination? What guidance do the Court of Appeal give in that regard?

130.In the absence of any further finding by the judge about the nature of the debate on transgender in the Charedi community, we must proceed on the basis that the views which Rabbi Oppenheimer attributed to the Charedi community are the community’s views and that their actions to exclude the children would be an expression of those beliefs. That approach then puts their religious beliefs at their highest.

131.If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball’s submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 (see paragraphs 119 and following above). In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children.

132.The mother and children also have their rights under Article 9, but they are outside the discussion in these paragraphs. Clearly, the courts must likewise not restrict their rights to any greater extent than that permitted by Article 9(2). The courts have a statutory obligation under section 6 of the HRA to act compatibly with the Convention.

133.We can, therefore, return to the question whether, if this court were ultimately to make an order for direct contact, that would violate the rights of the community under Article 9.

134.It is not appropriate for us to give any final view in answer to this question as that stage has not yet been reached. Provisionally, however, it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being. As the President held in Re G, para 43:

“In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.”
135.In making that decision, the restriction under consideration would meet the requirements of being prescribed by law. It is part of the court’s jurisdiction to make orders regulating parents’ access to their children. It would be proportionate because it would not be made immediately on the father’s application, but only after a period of further reflection in which the court has had time to consider further evidence if it wished so to do.

So whilst the Court of Appeal say that they have not reached a conclusion about the merits of the case other than that it should be re-heard, they drop the heaviest of hints that if the trial Judge finds himself in this dilemma

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”

Then the religious community are going to be the ones to lose out.

Very difficult case. Just in case the first hint was not over enough, the Court of Appeal hire a very large crane and use it to lower a heavier hint into position

Concluding observations
136.It may very well be when the matter has been further considered that there is room for some compromise position. As we have made clear, we consider that, under Strasbourg jurisprudence, each side has to be prepared to compromise. That means that it must be ready to make some concession, and the compromise must be one which is appropriate in a plural, democratic society governed by the rule of law.

137.Moreover, by the time any direct contact takes place, subject to the further directions given in these proceedings, these children are likely (as mentioned) to have had assistance of the highest standard in coming to terms with their father’s decision. We envisage that the assistance will make them aware of the need to be sensitive to the views of others, including (as at present) their own community, which is unable as we understand it to accommodate changes of identity within their own interpretation of their religious laws. These are difficult areas for the holders of faith, which underscores the need for broadmindedness and tolerance in our diverse society.

138.In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.

When I’m sixty-four (bundles)


A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and


(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and

(B) There were sixty four Court bundles  (and even whittling it down for the appeal there were still 27 just to decide the permission application)


Re A and B (Children) 2016




The impact of confidentiality on the appeal process


  • For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
  • The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
  • I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.


That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.

However, the sheer volume involved made that difficult  – doing legal work for nothing is one thing, but reading 64 bundles of evidence  is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)




28th July 2016 hearing


  • Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
  • It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
  • In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.


9th September 2016 hearing


  • The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
  • It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
  • At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.


The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.

If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.



Pre-flight checklist


I found quite a lot of Re F (Children) 2016 to be fairly stodgy porridge, eaten in the Scottish style with salt rather than sugar. That is to say, that whilst it would no doubt have been very good for me, I didn’t enjoy it much and spent most of my time with it pushing it around rather than actually consuming it.

It was Hague Convention proceedings, and I can’t actually face discussing the facts or the decision, which I’ll provide a link to if you are keen to read it.

There were two diamonds in it though, and as they were delivered by the President, expect to see him quoting them in future judgments approvingly and building upon them.

The first was in relation to criticisms about what was missing from the judgment of the original trial Judge. One might expect that the President, who after all authored Re B-S and the call to arms for judgments to show their working and be robust and leave no stone unturned, might get vexed by things being missed out of a judgment, but that of course was BEFORE the Court of Appeal got drowned in appeals and sick to the back teeth of appeals where the decision itself seemed okay but the judgment didn’t tick all of the boxes.

So we have a Court of Appeal shift in emphasis (this has been building over the last two years, but this really does put down a marker.  Don’t come to us on the basis of absence of ‘show your working’ unless the sums are also clearly wrong). I mean, it isn’t often that the Court of Appeal (still less the President) leans on a quotation from Mostyn J to demonstrate a point.


Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.”



Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?

Fuel? Check. Landing Gear? Check. Rudder? Check. Likely effect on the plane of any change of circumstances?


I’m totally in favour of judgments focussing on a robust analysis of the evidence and laying that evidence alongside the law, and setting out how the decision is reached, rather than the current model I see SO often in the Bailii reports of “If I namecheck and quote from every relevant authority, it will be assumed that I had those principles in mind, so I don’t actually need to show how I applied them, I just need to put in 10 pages of boilerplate that will bore the parties to tears, just to be a boilerplate bullet-proof vest against an appeal”

[I only started seeing those AFTER the Re B-S guidance, but correlation is not causation 😉 ]


And thus on appeals, Piglowska is back in favour, as opposed to the ‘can I find fault with the judgment’ approach that we had for a year or so post Re B-S



  • The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):


“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann’s phrase, the court must be wary of becoming embroiled in “narrow textual analysis”.



The next point, touching on the recent case of Re E, where the Court of Appeal flagged up that the Supreme Court’s decision that there was no presumption, rebuttable or otherwise, that a child ought not to give evidence, did not seem to have filtered through to Courts and lawyers on the ground.


As the appeal had already been rejected, the President acknowledged that nothing turned on what he was about to say, but the word “Obiter” is not carved into his heart in Times New Roman 12 point font for nothing…


Because, as I have said, nothing ultimately turns on any of this, I can take matters fairly shortly, in large part merely identifying the relevant authorities without any elaborate citation.


And then



  • The starting point is, of course, Article 12(2) of the United Nations Convention on the Rights of the Child and Article 11(2) of Council Regulation (EC) No 2201/2003, commonly referred to as BIIA, both of which identify the obligation on the court to ensure that the child is given the opportunity to be “heard”. Next I refer to the well-known passage in the characteristically prescient judgment of Thorpe LJ in Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011, paras 28-29, culminating in his observation that “judges have to be … alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings.” Thorpe LJ returned to the same theme in Re G (Abduction: Children’s Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, para 15, a case where (see paras 20-21) Thorpe and Smith LJJ themselves met the child, a 13-year old girl, and again in Re J (Abduction: Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457, paras 33, 42.
  • Well before then, in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the child to meet the judge might not be sufficient. Having observed (para 59) that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done”, Baroness Hale of Richmond continued (para 60):


“There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge.”

I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, paras 10, 14.


  • The Supreme Court returned to the topic, this time in the context of care proceedings, in In re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12, [2010] 1 WLR 701, holding that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. In In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038, the Supreme Court considered whether a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this court, it held that she should.
  • Next, I should refer to In re M and others (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, [2016] Fam 1, para 155, and, more particularly, to In re D (A Child) (International Recognition) [2016] EWCA Civ 12, paras 41, 44, 47, 48, where the obligation of the court to ensure that the child is given the opportunity to be heard and “the right of the child to participate in the process that is about him or her” were said to be fundamental principles of universal application, “reflected in our legislation, our rules and practice directions and our jurisprudence” and where it was said that “the theme of the case law is an emphasis on the ‘right’ of participation of those ‘affected’ by proceedings.”
  • Finally, I refer to the very recent decision of this court in Re E A Child) [2016] EWCA Civ 473, paras 46-48, 56-63, and, in particular, McFarlane LJ’s acid observation (paras 48, 56) that Baroness Hale’s judgment in In re W “would seem to have gone unheeded in the five or more years since it was given” and that “the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact.”
  • It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace.
  • In April 2010, “Guidelines for Judges Meeting Children who are Subject to Family Proceedings” were issued by the Family Justice Council with the approval of Sir Nicholas Wall P: [2010] 2 FLR 1872. In December 2011, and following the decision of the Supreme Court in In re W, the Family Justice Council issued Guidelines, endorsed by Sir Nicholas Wall P, on “Children Giving Evidence in Family Proceedings:” [2012] Fam Law 79. More recently, the whole topic, with other related matters, has been considered by the Children and Vulnerable Witnesses Working Group which I established under the Chairmanship of Russell and Hayden JJ in May 2014. Their interim report was published in July 2014 (see [2014] Family Law 1217) and the final report in February 2015 (see [2015] Family Law 443). The Family Procedure Rules Committee is currently considering the extent to which, given limited resources, the recommendations of the Working Group can be fully implemented. Whatever the outcome of that discussion, it is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.
  • One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.
  • One of the drivers for this is the point which this court emphasised in In re KP (A Child) (Abduction: Rights of Custody) [2014] EWCA Civ 554, [2014] 1 WLR 4326, paras 53, 56, namely, that a meeting between the child and the judge is “an opportunity: (i) for the judge to hear what the child may wish to say; and (ii) for the child to hear the judge explain the nature of the process;” that the “purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;” and that if “the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.” The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.



Heavy hint being dropped there that the Court of Appeal are itching to get their hands on an appeal where a Judge has refused to hear from a child, and that there’s a judicial speech already drawn up to deliver on it. Consider yourselves warned.


Achieving best evidence – a very critical examination


The Court of Appeal in Re E (A Child) 2016  were addressing an appeal from findings of fact that the father had sexually abused all of the children, including making them have sex with a dog, and of having taken them to hotels given them drugs and pills and allowed other men to abuse them or watch them. (I apologise for that graphic opening, I will try to keep the graphic content out of the rest of the post)


Quick history lesson – ABE, or Achieving Best Evidence, is the guidelines that were drawn up (and occasionally refreshed and honed) as to the police interviewing of children where allegations of abuse are being investigated. They came about as a result of the Cleveland scandal, where many children were removed into care for allegations of sexual abuse and the investigation process was flawed and nearly all of those children had been wrongly removed. When you think of the “Show us on this dolly where daddy touched you?” style of interviewing, that’s what ABE was aimed to stamp out.  The interviews are video-recorded and can be used as evidence in criminal proceedings and care proceedings – with the idea being that if the guidance is followed in spirit and to the letter, the chance of the child’s evidence having been contaminated or influenced by the person asking questions is reduced to a minimum. It’s really important.  I’m glad that the Court of Appeal are looking at this.


Let us start with  the delay between the allegations being made and an ABE interview being conducted.

  1. On 20th May 2015 the youngest child, D, then aged 7 years, made allegations to her foster carer implicating both Mr E and young A as having sexually abused her and her brothers. Further allegations were made to the foster carer by D on 25th May and these were in part supported by allegations subsequently made by her older brothers.
  2. All three complainant children were ABE interviewed by police on 27th May 2015. The reason for the delay between the initial complaint and the ABE interview was that the foster carer took the children away on a pre-arranged holiday during the intervening days. The process adopted by the foster carer, social workers and police, together with the content of the ABE interviews themselves, have been the subject of sustained challenge by the Appellant and those supporting the appeal before this court.


I have scoured the remainder of the judgment, but it does not seem to me that the delay forms part of the Court of Appeal’s criticism – there are MANY many others. It might, as a practitioner, have been helpful for the Court of Appeal to have been firm about the passage of time that ABE’s are taking – this one, in my experience, proceeded at rocket-lightning pace compared to the average ABE.  Sometimes, that passage of time reduces the chances of an accurate and reliable account being obtained – sometimes that account would rightly exonerate a parent and remove restrictions that are impacting on their family life, sometimes it would point strongly that there’s a case to be answered.


When should the Judge in the case see the ABE interviews?


In this case, the Judge had not watched the ABE interviews prior to the trial beginning. That, the Court of Appeal suggest, made the decisions she made at the start of the trial less solid (whether police officers should be called, whether the children should be called etc)

Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.


  1. It is apparent from the transcript and from the fact that the first day of the main hearing was spent in viewing the ABE material, that the judge had not viewed the videos prior to determining the Re W application on 3rd November. Although it may onerous to do so, it is necessary, before reaching a conclusion on an application for children to be called, for the court to gain a considered view as to the strength of the existing evidence. Sub-paragraphs 9(f) to (j) are plain on this point and require to the court to have regard to:
      1. ‘(f) whether the case depends on the child’s allegations alone;

(g) corroborative evidence;

(h) the quality and reliability of the existing evidence;

(i) the quality and reliability of any ABE interview.’

So the Judge needs to see the ABE interviews before the trial, in order to have a properly informed view as to whether the children should give evidence.

Fast-track interviews

Within this police investigation, the police officers went to see the children AFTER the ABE interviews were made, and conducted interviews with them to obtain more detail / to check their account. Those fast-track interviews were not recorded.

In early June the police log records that the officer in the case “has since the ABE-s in an attempt to get some clarity from the child[ren] about their disclosure, been to the home address and completed a series of fast track questions with the three children to assist in forming a chronology.”

  1. Although not formally part of the ABE interviews themselves, Mr Tyler also submits that the judge should have been extremely concerned that the same police officer had subsequently visited the three children to conduct a ‘fast-track’ interview with them. The concept of a ‘fast-track’ interview involving child complainants in a sexual abuse inquiry has not been encountered before by any of the very experienced counsel in this appeal or by any of the members of the court. Brief notes of the fast-track interviews are contained in the police computer log. B had compiled a handwritten note following his ABE interview and the officer ‘went through’ each point in the note with him, subsequently making a brief summary record on the computer log of what B may have said. Such a process is wholly at odds with the ABE guidance. The record contains the officer’s subjective summary of what the child may have said in response to direct questioning. There is no record of the questions that were asked or of the child’s actual responses. With C the officer ‘went through what C had disclosed to [the foster carer]’; again there is simply a short summary made by the officer of what C may have said.
  2. Mr Tyler’s case is that the fact that the ‘fast-track’ interview took place, without any apparent regard for due process or the potential effect on the ability of the evidence of any of these children to be relied upon in any subsequent criminal proceedings, indicates a need for great caution in placing any reliance on the validity of the earlier process conducted by the same officer(s).


(Whilst I haven’t come across “fast-track interviews” taking place AFTER the ABEs, it has become common and in my view sloppy practice, that they happen beforehand, often as a sifting or viability assessment to see if the child will make any disclosures at the ABE.  They are often labelled as Q and A’s. And I think that they are wrong, for all of the reasons above)

  1. However, Mr Tyler has succeeded in demonstrating the following significant departures from recognised good practice by those undertaking the ABE interviews:

c) The children were subsequently seen at their home by the interviewing officer for a process of fast-track questioning.

d) The short summary note of what each child may have said during the fast track process is wholly inadequate.

[We’ll come back to the many other flaws. Again, I wish that the Court of Appeal had condemned the process of police interviewing children either before OR after the ABE process, but one can read between the lines]

Phase one of the interview not being filmed

Phase one is of course a very critical part of the interview – it is where rapport is built, and any observer can see how it established that the child understands things and understands the difference between truth and lies.  I have never heard of this not being filmed before.

Mr William Tyler QC, leading Ms Jennifer Steele who appeared for the appellant before the judge, has identified a number of potential flaws in the ABE process. The first relates to “Phase 1” as described in the ABE guidance in each of the three interviews. “Phase 1” is the preliminary part of the interview in which the interviewer establishes a rapport with the child through the discussion of neutral, non-relevant topics after a preliminary description of the room and the identity of each of those present. Phase 1 should also include a discussion of the “ground rules” and an attempt to establish the degree to which the child understands the importance of telling the truth and the difference between truth and lies. It is apparent that, whatever process was undertaken with each of these three children with respect to the Phase 1 matters, it occurred off camera. The absence of recorded information as to this important early stage is compounded by the fact that no written record was kept of these interviews, as is normally required within the ABE scheme or, if any written record was maintained, it has not been disclosed into the family proceedings. It is therefore plain that the interviewer had some discussion with each child before entering the video suite, but there is no evidence of what was said. Mr Tyler submits that this gap in the evidence is important and can only reduce the potential for a judge to rely upon the answers given by the children in the subsequent stages of each interview which were recorded. 

The Court of Appeal add that to the list of findings about flaws in the ABE process.

a) The introduction and ‘truth and lies’ aspects of Phase One were not undertaken on camera. There is no note or other record of what was said to each child, and the circumstances in which it was said, prior to entering the video suite.

What came across as the purpose of the ABE

  1. Moving on, Mr Tyler submits that each of the three interviews is of a very poor quality in that the interviewing officer, with each child, uses blatantly leading questions during which elements of the narrative, not previously referred to by the child, are introduced. A most striking example of this is at the very start of the taped part of D’s interview, less than one page into the transcript where the officer says:
    1. ‘Okay I think that’s about it for me isn’t it we’ve done the intros. So obviously we know why you’re here today about what we’re going to talk to you about, yes, and I think it’s something you told [foster carer]. Okay can you just tell me, go from the start as much as you can about what’s been happening, do you remember what you told [foster carer], do you remember talking to her last week about something that had been happening with you and your brothers?’

D is unresponsive to this and similar requests, which then leads the interviewer to add:

‘[Foster carer] told us a little bit about what you said last week and it was to do with [Mr E’s first name given] and [incorrect name for A given], do you remember that now?’

This is but one example of the approach to questioning adopted by this interviewer throughout each of the three interviews.

  1. Mr Tyler took us to TW v A City Council [2011] EWCA Civ 17; [2011] 1 FLR 1597 in which this court was highly critical of the ABE process that had been undertaken in that case. At paragraph 52 Sir Nicholas Wall P said:
      1. ‘As we have already pointed out, the [ABE] Guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said earlier to somebody else. We regret to say that we are left with the clear impression from the interview that the officer was using it purely for what she perceived to be an evidence gathering exercise and, in particular, to make LR repeat on camera what she had said to her mother. That emphatically is not what ABE interviews are about and we have come to the view that we can place no evidential weight on it.’ [Emphasis in original]

It is a very easy trap to fall into during an ABE interview, which is precisely why there is so much guidance in Achieving Best Evidence, and why it requires specific training to be able to do it properly, and why sloppiness and deviation from the Achieving Best Evidence guidelines is so important. This is classic Cleveland Enquiry stuff.

I am not attacking these individual officers, I think it is a national malaise that Achieving Best Evidence isn’t as integral to the process as it needs to be.  And of course, police officers are fundamentally trained to investigate a crime and get the evidence of it happening. In an ABE, the fact that there may have been no crime and there may be evidence from the children of that, is just as important.


The hour-long break in the interview


For one of the children, the interview paused in the middle for an hour. When it resumed, the child was substantially more forthcoming. The obvious question is, what EXACTLY happened in the interim?


As I have already indicated, the interview with D was interrupted at that point for approximately one hour during which time the child was elsewhere in the police station. On returning to the interview room her demeanour is markedly different from the unresponsive presentation previously demonstrated. Again, no written record has been provided of what transpired during this interval. Mr Tyler submits that the judge should have permitted the police officer to be called to explain events during the missing hour. The only evidence available came from the foster carer who claimed that she said no more to D than “you need to say all the things while you are here, D”.


The Court of Appeal accepted this as a significant flaw

b) No note was kept of what transpired with D in the police station during the hour that she was out of the interview room.


The Judge’s refusal to call the police officer


Given the identified flaws, the Court of Appeal felt that the Judge was wrong to have refused the application by the parents to have the police officer attend Court to give evidence. And of course she made that decision not having seen the ABE interviews themselves.

The absence of information as to the Phase One process, the need to understand from the police officers what, if anything, they had said to D during her one hour absence and the need to understand in greater detail than the computer log provided what occurred during the fast-track interviews, made it necessary, in my view, for the police officer to be called. In the context of an 8 day hearing, the judge’s refusal of the application to call the officer on the basis that it was too late was, on the information given to this court, wrong in the absence of clear evidence that it would not be possible to call the officer at some stage in the hearing (either in person or over a video or telephone link).


Judicial analysis of the ABE interviews

  1. The conclusion that I have reached to the effect that it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure, renders it unnecessary to undertake a full description of the various criticisms that Mr Tyler makes of the judge’s evaluation of the children’s evidence. The key matters raised are, however, important and are as follows:
    1. a) The judgment opens, after four short introductory paragraphs, with the judge’s summary of the ABE interviews of each child. These summaries, which are not set into any context and are not preceded by any account of what the children are reported as having said when the allegations were initially made to the foster carer, elide description with selective evaluation and then findings.

b) No consideration is given to the potential for the manner in which the allegations were first made to impact upon the reliability of what was subsequently said by the children.

c) In the absence of any direct corroborating evidence, the judge failed to evaluate the various factors which militated against the truth of the allegations.

d) There is a failure to take account of the fact that C had twice made, and later withdrawn, false allegations of sexual abuse against other individuals.

e) The judge wrongly reached the conclusion that the evidence of each child corroborated that of the others. There was inadequate analysis of inconsistencies in the accounts, both internally for each child and between the three children.

  1. Although I consider that there is some validity in each of the grounds of challenge that Mr Tyler has raised, the most significant, in my view, is the first relating to the judge’s analysis of the content of the ABE interviews and the last relating to inconsistencies. I do not propose to say anything more as to the content of the ABE material and I will deal with the point about inconsistency very shortly.
  2. Mr Tyler’s skeleton argument plainly establishes the following propositions on the available evidence:
  1. i) each child gave a different account to that given by his or her siblings;

ii) each child made a number of significant factual allegations to the foster carer which were not repeated in their ABE interviews; and

iii) B effectively made no allegations of sexual abuse in his ABE interview.

  1. The judge’s approach to inconsistencies is seen at paragraph 16 of the judgment:
    1. ‘D’s account is different from her brothers. There are inconsistencies in the accounts between the three children which is said undermines the veracity of the accounts but the very same inconsistencies are also evidence that the children have not colluded or rehearsed their evidence. I am satisfied that this is not a prepared script.

Later, at paragraph 28, she states:

‘There is consistency from all three in the ABE interviews, which, although different, each corroborate different aspects of the primary disclosure.’

Finally, in response to a request for clarification after the draft judgment had been circulated, the judge added:

‘The inconsistencies in the children’s ABE interviews are addressed.’

  1. I am afraid that I consider that the judge’s approach to the many inconsistencies within the children’s accounts falls well short of the level of analysis that this evidence required. Without descending to detail, three short points can be made. Firstly, whilst it is correct that the inconsistencies did not demonstrate that the children were trotting out a script, that observation could not, at a stroke and without more, obviate the need for the judge to evaluate the inconsistencies in more detail. Secondly, it is simply not possible to hold that each child giving a different account in his or her ABE interview in some manner corroborates the account given by one or both of the others. As the judge observed, D’s account in her ABE interview was different to her brothers. B’s ABE interview was effectively devoid of any positive allegation being made at all by him. That is not corroboration. Thirdly, this broad brush and superficial approach to the inconsistencies was carried forward by the judge when making her detailed findings which include a number of specific allegations which were only made by one of the children on one occasion and neither repeated by them subsequently nor supported by a similar account from either of the other two children.



The children giving oral evidence – the Judge’s decision


  1. The question of whether or not any of the children should be called to give live evidence was considered by the judge at the IRH on 3rd November 2015. Prior to that hearing Ms Steele, on behalf of the Appellant, had filed a six page position statement in support of the formal Re W application that had been made on behalf of her client. In her document Ms Steele makes detailed submissions relating to the evidence in these proceedings under the various headings identified by Baroness Hale in Re W and supplemented by guidelines issued by the Family Justice Council Working Party on Children Giving Evidence (set out at [2012] Family Law 79).
  2. The transcript of the hearing on 3rd November 2015 did not become available to the court and the parties until the morning of the oral hearing of this appeal. Prior to that stage each party had referred to the judge giving a very brief judgment prior to dismissing the Re W application. The transcript, however, shows that, in fact, no judgment of any sort was given by the judge on that day. During the course of the ordinary business of the IRH the judge made the following references to the topic:
    1. “[the presence in court of the Guardians in the F Children’s case during the fact finding hearing would enable the Guardians/court]… to keep under review whether or not, for example, if I decided against hearing the evidence from the children, I do not know whether I will or not, I have not decided that, but that might be something which will need to be kept under review, because it is possible that the way the evidence comes out suddenly an issue becomes very, very clear which needs to be resolved factually and it would be therefore helpful to the Court, if the Guardians relevant to all the children were able to give guidance, help, recommendations in respect of whether or not I should for example revisit the decision that I made earlier.” (Transcript page 7).

“Well I think at some point a determination is going to have to be made in respect of the evidence of the children and it is probably better to do that in isolation at an earlier stage…”

Ms Steele relied upon the detailed submissions made in the context of Re W in her position statement. The transcript then continues:

“JUDGE WATSON: Well Ms Steele I am very pleased to see how you have set out it. You have set it out very clearly the concerns and the difficulties and indeed the contradiction in terms of the evidence. What I am struggling to see is how calling the children is actually going to improve his position. All of these matters can be dealt with in a written position statement as you have done, in oral submissions, because the one question that you cannot put to the child witnesses, is, ‘You’re lying aren’t you’.

MS STEELE: I accept that. However, the Local Authority are reliant on the evidence given to a number of different sources of the truthfulness of that.


MS STEELE: My client or me on my client’s behalf have to be able to, in my submission, not put to them that they’re lying but be given the opportunity to put to them the contradictions in their evidence.

JUDGE WATSON: Well I would not allow you to put the contradictions. You have got to bear in mind the age of the children-

MS STEELE: I of course-

JUDGE WATSON: -and their ability to deal with that sort of complex questioning. It is, the type of questioning which the, I am sure you are very familiar with the advocates tool kits and the gateway rules that apply in criminal proceedings that would apply in a case like this, and they set it out very clearly. I have just, for my own benefit, just summarised them as no repetitive questions, short questioning, no need to put the case, no tag questions, no comments. So all of the matters which you have properly put out, set out in this [inaudible], could not be put to the child witnesses.

MS STEELE: What, my understanding is that of course I can try and clarify the evidence they have given. Yes, I can’t put certain things and I fully accept that but I can put to them certain inconsistencies or certainly ask them to clarify which they say is correct. That kind of thing. Excuse me.

JUDGE WATSON: Well and to what end that you have confused the witnesses, that is not going to help the Court in deciding where the veracity in truth is. The truth is by looking at the careful submissions that you have made and weighing those into the balance. I do not necessarily have to accept what a child says on an ABE interview.


JUDGE WATSON: I need to look robustly at what is said in the light of all the other evidence that I hear.

MS STEELE: My Lady I don’t think there’s very much else that I can add-


MS STEELE: -with what I’ve already said in there and what I’ve said to you.


MS STEELE: There’s really nothing else I can add.


MS STEELE: Unless you would like me to attempt to-

JUDGE WATSON: No, I, you have set it out extremely fully and I have very much in mind the need for a fair hearing but unlike in criminal proceedings, where the, it is assumed that children will give evidence. They give their evidence in a very, very truncated way and for example the ABE interview only such elements as are agreed are put before the jury. Whereas I will see the entirety of the ABE, I will see it warts and all if I can use that expression. So I will be much more susceptible to any suggestion that there are contradictions that are unclear, that it is [inaudible], I do not need that to be put to a seven year old or a nine year old or indeed a 14 year old who has the difficulties that B has.”


I found the underlined exchange quite extraordinary. Of course a great deal of care needs to be taken in asking questions of a young child and of course a “gloves-off” attack on inconsistencies that just muddles and mixes up the child is going to be abusive and not advance the case, but the judicial suggestion here that this would be counsel’s agenda is extraordinary. Just my personal view.


The Court of Appeal’s view

  1. Having considered the transcript of the hearing of 3rd November, Mr Tyler made the following submissions:
    1. a) The judge had not viewed the ABE interviews prior to the IRH and she was therefore not in a position to form a concluded view upon the issue of oral evidence from the children;

b) Despite the detailed submissions made by Ms Steele referring specifically to the various elements identified by Baroness Hale, the judge made no reference to those submissions (save to acknowledge their existence) and did not refer to Re W at all during the hearing;

c) In the circumstances the judge’s consideration of the important question of the children giving evidence was wholly inadequate and could not be supported.

  1. Standing back from the details of this specific case, Mr Tyler submitted that in any case the question of children giving live evidence should only be considered once the judge has viewed the ABE material. He suggested that it may be good practice for a judge to identify at an early stage whether he or she would attach weight to the ABE interviews if they stood alone. He told the court that, in his experience, the culture of the Family Court with respect to oral evidence from children was really unchanged from the position that had existed prior to the Supreme Court decision in Re W. Mr Tyler readily accepted a suggestion made by Macur LJ to the effect that a child’s welfare may in fact require a determination in favour of them giving evidence, notwithstanding any immediate adverse impact on the child from the process of coming to court, where the future placement of the child could depend upon findings of fact to which his or her oral evidence might relate.


Note particularly this paragraph of the judgment


It is of note that, despite the passage of some six years since the Supreme Court decision in Re W, this court has been told that the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact. That state of affairs is plainly contrary to the binding decision of the Supreme Court which was that such a presumption is contrary to Article 6 of the European Convention on Human Rights.


  1. In any case where the issue of children giving oral evidence is raised it is necessary for the court to engage with the factors identified by Baroness Hale in Re W, together with any other factors that are relevant to the particular child or the individual case, before coming to a reasoned and considered conclusion on the issue.
  2. It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.
  3. The court should also have regard to the Working Party of the Family Justice Council Guidelines on the issue of Children Giving Evidence in Family Proceedings issued in December 2011 [2012] Fam Law 79. The Guidelines, which were specifically developed to assist courts following the decision in Re W, contain a list of no less than 21 factors to which the court should have regard when determining whether a child should give oral evidence in the context of the principal objective of achieving a fair trial [paragraph 9(a) to (v)]. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:
    1. i) the possible advantages that the child being called will bring to the determination of truth balanced against;

ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence.’

  1. Whilst not all of the elements described by Baroness Hale in Re W or in paragraph 9 of the Guidelines will be relevant in every case, it is plain that the court undertaking a Re W determination will need to engage in a relatively full and sophisticated evaluation of the relevant factors; simply paying lip-service to Re W is not acceptable. By ‘full’ I do not wish to suggest that a lengthy judgment is required, but simply that the judge must consider each of the relevant points with that process recorded in short-form in a judgment. Such a detailed process is in my view justified given the importance of the decision for the welfare of the child and for the fairness of hearing.
  2. It is plainly good practice for the court to be furnished with a written report from the children’s guardian and submissions on behalf of the child before deciding whether that child should be called as a witness. This court understands that it is, however, common-place for guardians to advise that the child should not be called to give evidence on the basis that they will or may suffer emotional harm as a result of doing so. Where such advice is based upon the consideration of harm alone, it is unlikely to be of great assistance to the court which is required to consider not only ‘harm’ but also the other side of the balance described in the Guidelines, namely the possible advantages that the child’s testimony will bring to the determination of truth.
  3. Part of any consideration of the overall welfare of a child must be that decisions as to his or her future, or the future of other children, are based, so far as is possible, upon a true understanding of important past events. Whilst the process of giving oral evidence in relation to allegations of past harmful experiences will almost always be an unwelcome one for any child, and for some that process itself may be positively harmful, those negative factors, to which full and proper weight should be given, are but one half of the balancing equation. In some cases, despite the negative factors, it may nevertheless be in accordance with the wider welfare interests of the child for him or her to be called to give evidence. Each case will be different, but even where the child may suffer some emotional harm from the process, if such harm is likely to be temporary and where the quality and potential reliability of the other evidence in the case is weak, it may (in addition to any fair trial issues) nevertheless be in the child’s best interests to give oral evidence. If the ABE interview process is poor, and there is little or no other evidence, then it may be that no findings of fact in accordance with allegations made by a child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
  4. The observations made in the previous paragraph are intended only to make the point there made; they are not intended to establish any new test or template for decision making over and above what is said in Re W and the Guidelines to which recourse should be had as a matter of routine in every case where there is a Re W application.
  5. Turning to the present appeal, it is unfortunately plain that the consideration given to the Appellant’s Re W application by the judge fell well short of what was required. I have set out the relevant passages from the transcript in full (paragraph 50 above). No formal judgment was given. At no stage in the hearing did the judge even refer to the factors set out by Baroness Hale in Re W or to those listed in the Guidelines.
  6. It is of concern that the judge suggested, during submissions, that the court, assisted by the guardians, would keep the issue of oral evidence under review during the main hearing itself. The question of whether or not a child is to give oral evidence should be determined well in advance of the hearing at which she or he may be called. To contemplate deciding, at a later stage and once the hearing itself has started, to call them is likely to increase the potential for the process to impact upon the child in a harmful manner and would allow little or no time to prepare the child and those caring for them.



Child’s article 6 rights


In this case, one of the children, A was 15 although with some learning difficulties – he was not capable of instructing a solicitor and was so represented by the Guardian and the child’s solicitor. When the Guardian and solicitor met with him, the allegations were discussed. The Judge directed that a note of those discussions be filed and served.

  1. A has never made any allegation of sexual abuse against his father or of being incited or encouraged by his father to abuse others. He did not admit that he had himself committed any act of sexual abuse on others. On 29th May 2015 he was interviewed by the police. This was not an ABE interview, but an interview under caution which took place after he had been arrested on suspicion of having committed rape. The interview lasted for one hour. A engaged with the process throughout by answering factual questions. When sexual allegations were put to him he was clear and plain in his complete denial of being involved in any sexual behaviour. An audio recording of this interview is apparently available, but no party invited the judge to listen to it.
  2. On 27th October A’s social worker visited him in order to ascertain his ‘wishes and feelings in respect of the upcoming fact finding hearing’. The social worker’s statement records that A asked what a fact finding hearing was and that she explained that the allegations that had been made against him and his parents would be put to the judge, along with other matters that concerned the local authority. She states, ‘A nodded as I spoke, suggesting that he understood’. He was then told that the judge would consider the evidence and make a decision on the likelihood of the allegations being true or not. A’s question following this explanation was about the options for his placement in the event that the allegations were found proved or not proved. The social worker records that when she explained that if no facts were proved she would work with A and his parents to determine how best to move him back home at a pace that he was comfortable with, ‘again A acknowledged this and nodded as I spoke’.
  3. The social worker went on to record that she discussed the allegations that had been made against A and that throughout this discussion he maintained eye contact with her and had open body language. When she explained to A that, with regard to allegations made by D against him, there were only two people who are aware of what, if anything, took place, ‘A nodded at this statement, however did not offer any discussion around this.’ When the social worker asked if A had ever seen behaviour such as that which had been alleged, A’s body language was said to change in that he responded with short answers and began to fidget with his hands, he was, however, still engaging with the conversation. A worker from the unit then joined the conversation and, after trying to explain to A what ‘learned behaviour’ was, he asked A if ‘there was anything he wanted to share at this point’ to which A replied ‘not right now’. When asked whether he might do so later, A said ‘yes, I think so’.
  4. On the 2nd November 2015 A’s CAFCASS guardian and his solicitor visited him in the unit in which he is now accommodated. On the day following the visit HHJ Watson made an order requiring the guardian to file a statement setting out what had occurred during that visit. The guardian complied with that direction by filing a statement on 8th November in which she described meeting A (together with his solicitor and a worker from the unit, ‘G’). A was told by his solicitor that the purpose of the visit was to meet him in order to go through the evidence that had been filed against him. It is not clear whether or not A was told that the meeting was or was not confidential on the usual solicitor/client basis. The statement describes A being given a broad description of the material that had been filed with the court and it records that A either remained silent or gave monosyllabic answers to any questions put to him.
  5. The statement goes on to state that the solicitor explained to A that only A knew if anything sexual had happened involving him and that the solicitor and guardian needed a ‘steer’ from A as to whether there had been anything sexually inappropriate which had happened to him in the past or not. A did not respond to this request and the statement describes time passing with breaks for tea and others matters being discussed before continuing:
    1. “I then suggested that A had a further break and suggested a simple YES (indicating there had been sexually inappropriate behaviour involving A) or NO (there had not). I wrote the two words on a piece of A4 paper and left the room.

When I returned A and G had gone for a further break. They later returned with the A4 paper folded in half. On opening the paper, the word YES was ticked. …

G then explained that A sat with him on a bench outside during the break. G felt that A was so tense that he was physically unable to take the pen and make the mark himself. G held the pen above one answer and then the other and asked A which answer A wanted G to tick. A indicated YES and G ticked it.

[Solicitor] and I did not question A or G further. G stated he would inform A’s key worker when he took over at 3pm.

I was aware that A’s information would be disclosed to his parents on 3.11.15. A was due to have contact on 5.11.15. I agreed to phone the unit later to inform them that Mr and Mrs E will be aware of events following court on 3.11.15. …”


The Court of Appeal point out that A had legal professional privilege relating to that visit and had not been asked to waive it. His lawyer was present, rather than just the Guardian.


  1. The first relates to the professional responsibilities of A’s solicitor and guardian during the process of trying to obtain his instructions on the allegations that were to be made against him in the proceedings. A, as a party to the proceedings who is represented by his own solicitor, must be entitled to the same protection afforded to all other individuals who undertake communications with their lawyers. No suggestion was made in the hearing of this appeal that any different standard or approach should be taken to A either because he is a child or because he may lack the capacity to instruct his solicitor directly. The importance of legal professional privilege was plainly stated by Lord Taylor in the House of Lords decision of R v Derby Magistrates’ Court, ex parte B [1996] AC 487:
    1. ‘The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.’
  2. The express purpose of A’s solicitor and guardian visiting him on 2nd November was to go through the evidence against him for the purposes of the forthcoming hearing. It is not apparent from the guardian’s statement or any other material that we have seen that the question of legal professional privilege was considered or discussed with A. The following day the fact that the visit had occurred was made known to the court and the judge directed the guardian to file a statement giving an account of it. There is no indication that that direction was contested or that the solicitor and guardian expressly purported to waive A’s legal professional privilege on his behalf. At the hearing of this appeal Miss Meyer did not argue that the issue had been addressed at all. The result was that the full details of A’s meeting with his solicitor to discuss these allegations, such as it was, became fully known to the court. In the event A had said very little of note during this meeting, but in another case the situation may be very different. It is obviously most important that, in the case of a vulnerable young person, those who are instructed to act on his behalf where he or she is facing serious factual allegations are utterly clear as to their professional responsibilities and astute to ensure that their young client’s rights are properly acknowledged and protected.


[This all VERY important for children’s solicitors]  The Court of Appeal actually found that A’s article 6 rights had been breached by this procedure.


Obviously with all of these flaws, the findings were overturned, and the case sent back for re-hearing.

  1. In conclusion, I am satisfied that this appeal must succeed on the following broad bases:
  1. i) The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.

ii) The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).

iii) The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.

iv) The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.

v) A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.

vi) The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

Given that all of the police investigations came up with no corroborative evidence and the case was based almost entirely on the children’s allegations and the ABE interviews, the LA will have an uphill struggle at that re-hearing.

Coal Board and Age Assessments


It has been a very long while since we had a piece of case law on age assessment. If you are already saying “I bet it involves Croydon”, then gold star for robot boy, well done!

London Borough of Croydon v Y 2016

Y turned up in this country from Nigeria. He claimed to have been born in 1999, and that he had been trafficked here. If true, that would mean that he was a child and entitled to accommodation via Croydon’s social work department and services and would be able to stay until 18. If not true, he would be an adult, and would probably be liable for deportation. [In this case, he absolutely would have been deported, it was the age argument that was putting that process on hold]

There’s therefore quite a vested interest in people who are not under 18 claiming that they are.

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.


[Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), ]


In this case, Croydon’s age assessment was based largely on Y’s physical appearance (as it was in a case I once had where the alleged 16 year old had a beard that Captain Birdseye would have been proud of). Y judicially reviewed that decision.

The Court gave some directions


5.On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

  1. The trial was fixed to start on 8 February 2016


Croydon then made an application to strike out the claim


On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment


[I’m not QUITE sure why that was an application to the Upper Tribunal Asylum and Immigration Chamber, rather than to the Judge who had given case management directions in the judicial review. It rather seems to me that those were applications for case management directions /orders in the judicial review fact finding, but the Court of Appeal don’t take up that point, so perhaps it is just a bad one on my behalf]

You’ll have seen the reference to Starr v National Coal Board 1977. It is not the same National Coal Board that comes up very infrequently (in judicial bias cases or recusal cases, citing Lord Denning’s remark that the Judge had intervened too much and ‘descended into the arena’)


The Starr principles

  1. The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
  2. At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:
    1. “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”
  3. At p 75H, Geoffrey Lane LJ said:
    1. “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”
  4. Cairns LJ said much the same at p 77C.


It is a damn clever argument, and ’nuff respeck to whoever at Croydon came up with it. Essentially, relying on these Starr principles to say “If we are having to defend a case, but the person bringing it refuses to cooperate with assessments that we reasonably ask him to participate in, the case should be thrown out”

The Tribunal disagreed, and hence Croydon went to the Court of Appeal.


The decision at first instance


  1. The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:
    1. “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.”

  1. Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:
    1. “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal

  1. Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.


The Court of Appeal concluded that the Starr principles DID apply  (this was something of a shock to me when I was reading the case, though not an unpleasant shock) and that thus the appeal must succeed



  1. It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
  2. On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
  3. I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.
  4. As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
  5. The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.


Given what is said here, the door is at least ajar for people arguing that the Starr principles that a person is entitled to insist on another party being assessed by an expert of their choice should apply to private law family cases, where two parents are arguing about who is suitable to look after their child and how much time the child should spend with the other. I think that it is more of a stretch for care proceedings (the Local Authority, who want the parent to undertake an assessment, are the applicant, not the defendant)

This part of the Starr principles though, I can see being deployed


The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant.


Not perhaps so much with whether there should be an expert assessment at all, since that is rather covered by the Children and Families Act 2014 which sets out the ‘necessary to resolve the proceedings justly’ test, and Starr as case law can’t override later statute. But in a case where a Local Authority want the father to be assessed by Dr Leighton Buzzard, and the father would prefer Dr Ashby De-la-Zouch, then Starr (and this case) might be usefully deployed. The strong suggestion is that the witness should be of the defendant’s own choosing.


[I can also immediately sense that Ian from Forced Adoption will be wanting to deploy Starr and this case to say that a parent should be entitled to call evidence at a final hearing from whatever witnesses they choose – usually character witnesses, and it will be interesting to see how the Courts deal with that sort of argument]

Many of you who are familiar with age assessment cases are pondering the use of dental X-rays, which are pretty controversial in age assessment determination (in terms of reliability, efficacy and ethics of undertaking an X-ray when there is nothing medically wrong with a person for purely forensic purposes many dentists are unhappy about it). The Court of Appeal acknowledged those issues, but concluded that it wasn’t a reason for refusing to undertake the assessment.

it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.