Tag Archives: fact-finding

“A Judge too far”

Posted on February 4, 2013 by suesspiciousminds

 

 

A quick discussion on the Court of Appeal decision in Re J-L (Children) 2012

 

 

 

The Court of Appeal sat in a very short hearing to determine a case where a Judge, when dealing with a fact-finding hearing in care proceedings, made a particular set of findings that deviated from the schedule of proposed findings drawn up by the Local Authority and found that the children had witnessed inappropriate sexual behaviour whilst in the care of their mother.

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed111465

 

 

 

I blogged about this one prior to the full transcript being up, here:-

 

https://suesspiciousminds.com/2012/12/05/i-still-havent-found-what-im-looking-for-or-going-off-menu/  

 

 

based on the family law week summary that suggested that the Court of Appeal had ruled that it was not open to a Judge to make findings that were not on the menu / schedule of findings placed before him.

 

Reading the full transcript, I don’t think the Court of Appeal go that far at all. There is not, in my view, such a principle established by this case.

 

 In fact, although it is a short one page judgment, I can’t find a single sentence that hints at the Court of Appeal determining whether or not a Judge can go “off-menu”  – it simply didn’t fall to be determined as a result of matters I set out below.   

 

 [What they do say is that on the EVIDENCE before the Court, the particular finding made wasn’t one open to the Judge to find. 

 

It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property

 

[It being fairly pertinent that there was no material or allegation or disclosure before the Court that the children had witnessed this sort of thing. There is nothing unusual about the Court of Appeal saying that a Judge couldn’t make findings on the evidence before them, nothing new to see there.  But wait around, because the next bit is good]

 

 

 

By the time of the hearing, each of the parties had reached a decision that the finding the Judge made in relation to those matters was a step too far, and that it would be appropriate for that particular finding to be struck out. Indeed, the Local Authority had been in liaison with the other parties to try to formulate some wording which would be acceptable to all.

 

The Court of Appeal were rightly pretty irascible about  the need for an Appeal hearing at all, given that all parties were of the view that the findings needed to be adjusted and the offending paragraphs struck out

 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father’s legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.

 

 

 

I think it would be a risk, in any future appeal where some of the parties are seeking to avoid the need for an appeal by reaching a consensus to be the one lone wolf not engaging in that process.   (Of course, it is different if the party has a different view to the attempted consensus and there is a chasm which can’t be bridged, even following attempts, but here, it seems as though father’s team just sat out those discussions)

 

 

The Court of Appeal don’t really address what would actually happen in this situation on the ground.  There’s almost an implication that an appeal hearing isn’t needed if all of the parties could agree a form of wording on the finding in dispute.

Now, imagine that the Judge makes a string of findings, lets say 8 in all, and the parties then write to her after the Judgment and say  “None of us agree with you on finding 7, and we think you should say X”

 

 

There’s a bit of a difference in the parties doing that of their own accord, and the Court of Appeal having approved that. In the latter case, the Judge has been told that finding 7 won’t wash, and needs to be sorted out.

 

In the former, I can think of many Judges who would say “Well, thank you for your kind interest in my judgment, and contribution to it after the event”,  and then in tones similar to Miranda Richardson in Blackadder, add  “Who’s Judge?”

 

[If the Court of Appeal instead mean that the parties in this sort of situation in the future could have lodged their revised wording to finding 7 and the Court of Appeal could have just agreed it without a hearing, that also seems iffy to me.  A Judge wasn’t necessarily wrong, let alone plainly wrong, just because all four advocates think they were, and a determination as to whether they were ought to be for the Appeal Court, not just to rubber stamp an agreeement between the parties as to what the judgment OUGHT to have said. But I am, perhaps, old-fashioned in that regard. ]

 

Who's Queen?

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How do we deal fairly with vulnerable adults under suspicion?

Posted on November 30, 2012 by suesspiciousminds

 

 

It is not uncommon for adults involved in child protection cases to be vulnerable and have their own needs. It is not of course, always the case, but it is not rare.  Also, it is not uncommon for adults involved in child protection cases to be facing serious allegations and have to give factual evidence about whether they did, or did not, do something. It is again, not always the case, but it is not rare.

 

Inevitably then, there will be some overlap, where the person facing very serious allegations and having to give evidence about them is a vulnerable witness.

 

We have been lacking in guidance about this, save for the Court of Appeal decision that having a vulnerable adult as a potential perpetrator was not sufficient to dispense with the need for a finding of fact determination.

 

The Court of Appeal has just decided :-

 

Re M (Oral Evidence: Vulnerable  Witness)

 

I do not yet have a transcript, so this is the helpful summary from Family Law

 

 

 

Court of Appeal,  Thorpe, Rimer, Black LJJ, 21 November 2012-11-30

 

A fact-finding hearing was scheduled to determine whether the father had caused non-accidental injuries to the 18-month-old child. The father was found to have low intelligence and a psychologist recommended that due to his vulnerability, tendency to be manipulated and anxiety of speaking in front of people, special measures should be put in place when he gave oral evidence either by way of video-link or screen in court.

 

As video facilities were not available the father had to give evidence in court but a screen was not provided and the father’s application for an adjournment was refused. The father’s guardian acted as an intermediary but had no experience of doing so. Following the father’s evidence his representative applied for the trial to be terminated due to an infringement of the father’s rights under Article 6 of the Human Rights Convention. The judge determined that the father had capacity to give evidence and that he had caused the non-accidental injuries to the child. The father appealed.  

 

The appeal would be allowed. While the judge had a duty to manage the instant case in a busy court, that did not override the duty to ensure the father had a fair trial. The judge had erred in failing to specifically rule on the father’s application for an adjournment when it became clear that a qualified intermediary had not been available. Overall the judgment could not stand in light of the breach of the father’s Article 6 rights.

 

 

Hopefully, the full judgment will give some guidance to professionals and the Court as to how the article 6 rights of vulnerable adults are to be protected whilst the Court conducts the necessary determination of whether a child has been abused and if so, how that came about.

 

It raises also interesting questions as to whether a request for a cognitive assessment in cases where a fact finding hearing might be contemplated, should be tailored to include specific questions about giving evidence and any protective measures that should be put in place.

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So tired, tired of waiting, tired of waiting for you

Posted on October 29, 2012 by suesspiciousminds

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

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The importance of being formal

Posted on October 22, 2012 by suesspiciousminds

 

 

A discussion of the private law case of Re K (A child) 2012 EWCA Civ 1306.

 

 

The judgment of the Court of Appeal can be found here

 

http://www.familylawweek.co.uk/site.aspx?i=ed102441

 

 

Normally I start with – the facts of this case are quite straightforward, but in this one, they aren’t.

 

There are four children, A, S, G and B.  The children were all the biological children of one woman, the mother.  A and S were the children of the father.  G and B were, the mother says, fathered by two different men who had raped her, years apart.

 

A, S, G and B all lived with the father, who although not being the biological parent of G and B was a father figure to them.

 

A younger child from another relationship, D, lived with the mother.

 

There were serious allegations that mother had emotionally mistreated the children, and the section 7 report was clearly in favour of the children residing with the father, and indeed had gone further in saying that if there was a shift in residence, the Local Authority would commence care proceedings to protect the children from the risk they considered mother to pose.

 

The appeal arose as a result of a review hearing in residence and contact dispute.  At the review hearing, set up by a previous directions hearing ordering the author of the section 7 report to attend and be cross-examined, the positions of the parties were this :-

 

Mother invited the Court to appoint a Guardian and a child psychologist, so that the issues in relation to the children’s wishes and feelings could be explored.

 

Father invited the Court to make final Residence Orders and conclude the case.

 

 

An odd feature of this appeal was that the tape machine had not been working, and thus neither the judgment, nor the hearing itself had been recorded.  Therefore, any criticisms I make of those representing mother are with the caveat that the matters which seem to be omissions might well have been dealt with and just not recorded. And they arise from the criticisms made by the Court of Appeal.

 

The Judge dismissed the applications for a Guardian or a child psychologist to be appointed, made Residence Orders and made an order for contact which was  “as directed by the Local Authority”, making it plain that the orders were not “set in stone” and that mother could bring a fresh application if things were not working.

 

The mother appealed on these grounds :-

 

 

  1. That the decision to refuse a child psychologist or a Guardian was plainly wrong.
  2. That the Judge had effectively abdicated decision-making about frequency and duration of contact to the Local Authority
  3. That he had made a final order at a review hearing and had not heard evidence from either parent (although he had heard evidence from the social worker)
  4. That the allegations made against mother, and the cross-allegations of domestic violence were not determined at a finding of fact hearing.

 

 

 

 

The Court of Appeal rejected the mother’s arguments about instruction of a Guardian or child psychologist, considering the judge’s reasoning on this to be solid and it being a valid case management decision.

 

The lead judgment was delivered by Lady Justice Black.

 

35. I can deal robustly and swiftly with the question of the appointment of a guardian and/or a psychologist.  I am not persuaded by the mother’s arguments in this respect.  The judge had the benefit of input from the local authority, who had been very much involved in the case over a period of time.  They were not abandoning the case but were intending to continue their attempts to persuade G to see his mother and would continue to enable B to do so.  It was certainly open to the judge to take the view that it was difficult to see what more another expert could offer and that this was not the moment to take the course of involving another person in the children’s lives.  Furthermore, appointing a guardian or instructing a psychologist would inevitably take time and he was entitled to put into the balance in this respect that the children needed to be settled and to return to normality.  Protracted court proceedings would not help with that.

 

The Court of Appeal also considered the Judge’s position on contact to be acceptable.

 

36. I am not persuaded by the mother’s argument that the judge abdicated responsibility for solving the contact issue either.  He determined that contact should be taking place and he made the decision to continue to entrust the furtherance of it to social services because he thought that G would come round.  He made clear that this was not a final decision and that the mother could bring the matter back to court if it did not progress.  Keeping the proceedings open for a further year and expressly providing for liberty to apply, which was not necessary in law and must therefore have been included as a deliberate message that the decision was not as the judge said “set in stone”, underlined this.  The judge was entitled to take the view that this was the course that was in G’s best interests for the moment.

 

 

But it was the summary disposal of the case that concerned them.

 

The Court of Appeal note that from the notes of the hearing that they had been supplied with, those representing the mother had focussed on their application for adjournment and had not addressed the Court specifically on the mother giving evidence, or the need for a finding of fact hearing, or the reasons not to make final orders in accordance with father’s case.

 

[As indicated earlier, it may be that all of those things were done, but it was not recorded on the notes of hearing that the Court of Appeal were supplied with. I don’t want to cast aspersions on those representing mother, as that would be unfair given that I wasn’t there, and haven’t seen a full transcript]

 

40. I can well understand how it was that the judge took the approach that he did, that is not hearing from the parents.  He was anxious, rightly, that the proceedings should not be drawn out any longer, and no doubt he was influenced by the weight of the evidence in support of the factual case put forward by the father and supported by the local authority’s investigations, and also by the practical difficulties in the way of the mother’s application for residence.  Time had run out for the hearing, almost certainly because of the pressure of work in the court and it was already late in the day, and perhaps most importantly the judge was not asked by counsel for the mother to hear evidence from her or to permit cross-examination of the father.  Counsel for the mother seems to have been taken by surprise by the judge’s final determination of matters.  He was, as I have said, concentrating on persuading the judge that the matter should be adjourned for the intervention of a guardian or a psychological report and he did not expect that the judge would not only dismiss that application but also proceed to make final orders. 

 41. There are certain situations in which it is correct for a court to deal with applications summarily or on very limited evidence, but if that is to occur it is normally necessary for there to be some argument as to whether that is an appropriate course and a determination by the judge that it is for reasons which he articulates. 

42. In this case the course that was taken does not seem to have been the subject of such a process.  I am driven to the view, in all the circumstances, that the procedure adopted by the judge was rather too pragmatic and resulted in a hearing that was not entirely fair to the mother. 

 

 

So the Appeal was allowed.  Between the initial decision and the appeal hearing, there were some extraordinary developments. That is a massive understatement.

 

 

43. A few days ago the father’s solicitors wrote to the mother’s solicitors saying that contact with B, the only child who had been seeing the mother without problems, was going to be suspended.  This was said to be because of a series of incidents which had given rise to concern about B’s safety and the father’s. They included the following.  A man who called himself Stuart had turned up at B’s school claiming to be B’s father.  A man who gave a different name had turned up at the contact centre wanting to join in contact with B.  A third incident involved a man trying to snatch B from the father on a tube station platform. 

44. The mother’s solicitors replied to the father’s solicitors saying that in mid-July, when at Homebase, the mother had recognised the man who raped her and had approached him and told him that B had been born as a result of the rape.  The man (Stuart), had subsequently attended at B’s school and at the contact centre.  Stuart told the mother that the father was behind the rape, having instructed Stuart to beat the mother up and rape her, and said that if he did not do so he would be paid a visit in relation to money that he owed the father for drugs and could not afford to pay. 

45. Both parties concede that, in the light of this new and presently untested material and the suspension of contact with B, the case will have to return to the county court judge in any event now and that findings will have to be made about factual allegations

 Now that will be an interesting finding of fact hearing. Given that as we know, the Court findings are binary (a thing either is proved to have happened, or it is proved to have not happened; there is no ‘not proven’ or ‘not sure’)  either the father recruited and paid a man to rape the mother, or the mother has made the most scandalous and false allegations about the father. Either eventuality has huge implications for the children and their relationship with both parents. It is hard to see how they could go on to have a meaningful and full relationship with both parents after the determination of which of these two possibilities is true.

It is worth noting that the two other Appeal Court judges, whilst granting the appeal, expressed quite a bit of sympathy with the trial judge, and the Court as a whole communicated the need for all court hearings to be properly set up with clear and recorded ambit for the hearing , and for the formalities to be observed.

 

50. I would just add one short postscript.  Family practitioners and judges have become adept at dealing with situations that are continually developing, which are not straightforward, and which require speedy decisions for which there is often insufficient court time.  Conscious that children await their decisions they respond valiantly by getting on with the job without insisting on too many formalities.  However, it is important that everyone understands the issues that are to be determined at each hearing and addresses the form that the hearing will take, ensuring that the process is robust enough, not too robust. The mother in this case had not filed a formal application for residence and contact and it would have assisted in an understanding of the matters that had to be determined had she done so.  Indeed, it may be helpful generally if rather greater attention is paid to the formalities in family proceedings. 

51. Secondly, a word about review hearings.  Hearings at which there is to be a “review” of a case are not at all uncommon, but they do carry a risk that there is a misunderstanding as to what will be addressed by the court.  It is important that in advance of such a hearing, there is as much clarity as possible about its form and ambit, the issues that will be addressed, whether evidence is contemplated and whether the orders that result will be case management orders or orders of substance and, if the latter, whether interim or final

 

 

And

 

Lord Justice Aikens

 

53. I would just wish to add two comments, however.  First, I can well understand why in the circumstances the judge took the robust and pragmatic course that he did.  In particular I would note that the judge’s course should be seen against the fact that the mother, represented by counsel, did not apply for the mother to be heard or for the father to be cross-examined; she did not submit that there should be an interim residence order and did not seek an adjournment.

54. My second comment is this. I entirely agree with what my Lady has said about the need for requisite formalities in family cases.  If those formalities had been observed in this case, it is possible, to put it no higher, that the current position could have been avoided

 

 

I think it would be unlikely that someone appealing in the future on the grounds that a Judge had not heard from their client would be likely to succeed if they hadn’t made representations before the Court that their client should give evidence, for example.

 

No matter how confident one might be that your application for an adjournment will be granted, it is absolutely necessary to make sure that you deal with the counter applications that are being made, to ensure that the Court know that you resist those and the reasons why.  Likewise, if a finding of fact hearing is sought, a schedule of allegations ought to be drawn up and lodged and a formal request made for such a determination.

 

 

The comments about review hearings are, I think, very sensible. The term is so widely drawn that it covers everything from a quick look to see that everything is on track, to interlocutory arguments about experts and evidence, to “well, it might be possible to conclude the case”  and it is better to record clearly on the face of the order what the issues to be reviewed are, and what is envisaged might be achieved at such a hearing.

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It was Professor Plum, in the kitchen with a candlestick – no, it was Professor Plum AND Miss Scarlett….

Posted on July 19, 2012 by suesspiciousminds

A discussion of  the Court of Appeal decision in Re L-B (Children) 2012 . Or ‘when is a judgment not a judgment?’

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/984.html 

 

 

If you’re going to read one case this year, you should probably be more ambitious in your reading, but in any event, if you want one that is not necessarily hugely important but a real shocker, this one would be a good start.

 

It seems a silly little thing, but actually raises some good (if quirky points) and cuts to the root of what judicial decisions are.

 

The facts are very simple (and I assure you that this is not one of my imaginary judgments, though I wish I’d thought of it)

 

A Judge heard a fact finding hearing about non-accidental injuries.  At the conclusion of the hearing, the Judge indicated that the full judgment would be provided in due course, but that she had determined that the injuries were non-accidental and had been caused by father.  That was in December 2012.  It is important to note that this finding was recorded within an order made at that time.

 

Counsel for father invited the Court to deal with, in the full judgment, the matters as to fact and law that had been set out in father’s written submissions.

 

The LA moved forward with plans to place the children in the care of maternal grandparents (there were other difficulties with the mother, outwith the physical injuries) .

 

 

 

The perfected judgment was handed down on 15th February, and it was with some surprise that the parties heard the following passage :-

 

The perfected judgment was not in fact distributed until the 15th February. In that judgment the judge stated that she had “reconsidered the matter carefully” and had reached the view that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”.

 

In Lord Justice Thorpe’s beautifully understated prose,  “this was indeed a bombshell”

 

 

 

 

The judgment recorded the following:-

 

  1. 22.   However the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had not been alone with the child and might not have caused some injury.

23. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view.”

 

 

The issue before the Court of Appeal was twofold, in essence.  Was the Judge bound by her earlier decision that father was the perpetrator of the injuries or entitled to change her mind and make a Lancashire finding? (i.e her function in determing the fact finding ended when she gave a short judgment in December and made an order recording that father had been determined by the Court to be the perpetrator of the injuries)

 

  And if the Judge were not bound by her earlier decision, does the change of mind in any event render the judgment unsustainable?

 

 

Matters become worse – when trying to establish when the order in December was perfected and sealed, the following came to light:-

 

  1. The court seal on the order of 15th December is only partially legible and bears no date. When we asked for the date on which the court sealed the order no-one in court could answer the question. We accordingly proceeded on the common assumption that the order had been sealed prior to 15th February 2012. However, we required investigation over the lunch adjournment.
  1. At 2pm a further extraordinary story emerged. Manchester Civil Justice Centre does not keep a record of the date that orders are sealed. The order of 15th December was drafted by the Local Authority’s representative and circulated to other parties for approval. On the 6th January it was emailed to the judge for her approval. That email received no response.

 

31.The hearings on the 23rd January, 20th February and 23rd February all provided the obvious opportunity for the Local Authority, and other parties, to ask the judge either to approve or amend the draft submitted for her approval. However, it was not until the 24th February that the Local Authority noticed what was lacking and re-submitted the draft to the court. Seemingly the draft received the court’s stamp on that same day.

 

 

 

 

 

The Court of Appeal grasped the significance of this.

 

  1. This revelation altered the legal path. Had the judge a license to revise or reconsider on 15th February since the previously announced conclusion had never been made the subject of a perfected order: see for instance the judgment of Arden LJ in Re T (contact: alienation: permission to appeal) [2003] 1FLR 531 at paragraph 50 where he said:-

“It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order”

 

 

So, had the order made in Court in December naming father as sole perpetrator been sealed before the Judge had changed her view on the case and amended her judgment, that would have been outside the safety net of Re T, because the order would have been drawn.

 

 But in this case due to a catalogue of errors, the order was not sealed before the Judge changed her mind, and thus had the latitude to do so.

 

(A salutary lesson to us all, to record on the Court order on the fact finding hearing what findings were made AND to ensure that the Court seals them as soon as possible – though this issue is developed later, I still think it is good ‘belt and braces’ to do this)

 

The Local Authority, argued that in care proceedings, it is the final order as to Care Orders, Supervision Orders or no order that is  “the order” and that therefore the Judge can amend any judgment made at interlocutory stage providing that the “final order in the case has not been drawn up”

 

(That was an interesting argument in this case, but one which could wreak havoc in care proceedings generally if the judgment given in any fact finding was still ‘up for grabs’ at any stage thereafter until final disposal of the case, and I’m slightly surprised that the Local Authority wanted to set that particular hare running, given that the Re T point was already made about the legality of the Judge being able to change her judgment at any point before the order was drawn up (i.e sealed)  )

 

 

Thankfully for me, Lord Justice Thorpe determined:-

 

  1. It is important that we should not diminish the general importance of finality that judgment brings to human disputes. Judges appreciate that their findings as to disputed past fact and as to credibility are enduring and they are very conscious of the consequential burden and responsibility. The responsibility is magnified by the knowledge that once they have pronounced there is no opportunity for reconsideration or review.
  1. This principle is of particular importance in child protection litigation. This case well illustrates the havoc, the damage to the child and the family and the difficulties for the social work team caused by the judge’s departure from principal.
  1. Reverting to the question identified in paragraph 37 above, I do not draw from paragraph 21 of Munby J’s judgment, the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licenses a judge generally to amend his judgment as to past fact at any time before he has pronounced his judgment as to the future.
  1. In my opinion the purpose and objective of each of the preliminary hearings as to past events, and the welfare hearing to settle the future, are fundamentally different. The purpose and objective of the first trial would be jeopardised or lost if the judge at the second were free to re-write the history of past events

 

 

 

On the central issue of whether the Judge was entitled to change her judgment, Lord Justice Thorpe decided the following :-

 

  1. Furthermore, these skeletons reveal a tension between two lines of authority: the first establishing the principle that a judge is free to change the judgment until the resulting order is sealed (see Stewart v Engel [2000] 3 All ER 518), the second, that when an oral judgment is given, the winner is entitled to rely on its validity, only to be upset in most exceptional circumstances (in Re Barrell Enterprises [1973] 1WLR 19).
  1. I do not believe it necessary to consider these and other relevant authorities cited further, given the extraordinary facts of this case. I need only emphasise the clarity of conclusion announced on 15th December, the general assumption that the resulting order had been perfected in mid January, the general implementation of the judge’s conclusion, her adherence to that conclusion at the hearing on the 23rd January, the absence of any change of circumstance and the general slackness that left the December order unsealed until 28th February.
  1. Despite all the difficulties that were laid out in the supplemental skeletons I unhesitatingly conclude that the judge was bound to adhere to the conclusion of her December judgment and that her obligation to particularise it further did not permit her to enter a fresh and contrary conclusion. The result was not, as is submitted, merely to add back the mother: it was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator. The effect of the judge’s shift is to remove the simplicity of a sole parent perpetrator. However the mother was not a placement option. That remains between father and maternal grandparents. Whether the father is viewed as a possible or a proven perpetrator there is still a risk to be assessed.

 

And effectively rejected the Re T argument that the Judge could change her judgment up until the order is perfected, saying in essence:-

 

If a judgment seems to be incomplete or deficient, counsel has the obligation to invite the judge to expand or supplement rather than to rely on the deficiency as grounds for an application for permission to appeal. But that practice allows the judge only to expand findings or reasons in further support of his stated conclusions. It certainly does not permit a judge to reverse a previously stated conclusion.

 

And thus that Re T effectively allows a Judge to refine, polish and improve a judgment, to perfect it and to take on board issues raised by the parties, but NOT to reverse it.  

 

 

 (That leads to an interesting tension with some recent Court of Appeal authorities suggesting that with a deficient finding of fact judgment, counsel should furnish the Judge with a list of areas that need to be addressed and a judgment perfected, because it implies that whilst the Judge can bolster the judgment against appeal, he or she can’t actually be swayed by those identified deficiencies to the point of changing their decision)

 

 

The second Judge, Lord Justice Rimer, took a contrary view, that having come to a fundamentally different conclusion, the Judge HAD to amend her judgment and be allowed to do so, otherwise how could she sensibly follow her judicial oath? Having determined that father was NOT the sole perpetrator, but a Lancashire one, and the case potentially progressing in a way that would conclude with him seeking to care for the child, it must be wrong for the Judge to HAVE to proceed on the basis of findings she had no confidence in.

 

One set all.   Sir Stephen Sedley to serve for the championship.

 

Sir Stephen Sedley is obviously not a great believer in preserving tension, because he makes it plain in his opening paragraphs where his judgment is going :-

 

  1.  The history of these proceedings has been fully set out in the other two judgments. I can therefore go directly to the issue: did Judge Penna have power to substitute her second judgment for her first?
  1. In my judgment she did not. I reach this view on both procedural and substantive grounds.

 

74. It seems to me to be of little or no consequence that the order recording the first judgment had not yet been sealed in the court office at the date of the second judgment; or that a final order in the case still remains to be made and sealed. Justice cannot depend on the functioning of an overworked and underfunded court office. Although the sealing of an order gives visible finality to a court’s decision, it is the delivery of judgment which constitutes the decision. The drawing up of the consequent order is not unimportant (and before the days of mechanical recording and word processing was often critical), but it is not what gives finality to a judgment. Nor can “deeming” a perfected judgment to have been handed down on the day of its distribution (as was purportedly done here) somehow postpone its finality.

 

 

And then gives this lovely quote, which I fully intend to steal and use at the earliest opportunity.

 

“Finality is a good thing,” said Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60 IA 354, 361, “but justice is a better.”

 

 

 

 

 

And this is the paragraph which seems to settle things :-

 

Between 15 December 2011 and 15 February 2012, when she reversed her own decision, nothing had changed except the judge’s mind. I do not mean this dismissively. There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge’s mind – to justify reversal of a judgment

 

 

 

It is always harder teasing out the principles from an Appeal case when the second and third judgments are not  “I agree” and particularly where one is a dissenting judgment, but I think the following :-

 

 

  1. In a fact finding hearing, a judgment is made when the Judge indicates the decision and NOT when the order is sealed.  And certainly it doesn’t hang over until the final order is being made.

 

  1. The detail of a judgment may be perfected and refined and a Judge is entitled to take supplementary requests for additions and clarifications into account.

 

  1. That refining process (post announcement of decision and pre perfected judgment being produced) can not produce a reversal of the DECISION or fundamental change of direction unless there are exceptional circumstances  (and those have to be more than the Judge’s mind having been changed)

 

 

Where the story goes next is harder to tell. The Court dealing with the welfare hearing have to proceed on the basis that father is identified as the sole perpetrator, even though the Judge who made that finding no longer believes it to be the case.  If it is the same Judge, how can her decision at analysis of ‘risk of harm’ and ‘ability of the parents’  limbs of the welfare checklist truly proceed on the basis of the father having caused the injuries, rather than merely paying lip-service to that being the position in law?

 

If that were to be the tipping point that prevented father caring for the child  (i.e all things being equal, if there was a Lancashire finding, the child would be in his care but not as a sole perpetrator) how can justice really be done?

 

I think that this decision is right in law, and from a moral standpoint, it is right for mother  (it can’t be right that a Judge hearing the case in December takes her out of the equation and then puts her back in two months later)  but wrong for father  (because the Judge no longer has confidence in the finding she made naming him as sole perpetrator)

 

 

See everyone, law CAN be interesting.

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“Here they are, they’re so appealing…”

Posted on March 30, 2012 by suesspiciousminds

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

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