Tag Archives: flaws in judgment

“And all the pieces matter…”

Posted on November 4, 2019 by suesspiciousminds

 

 

 

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

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

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

 

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

 

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

 

As the Court of Appeal say in the judgment

 

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

 

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

 

The Court were sympathetic to the pressures on the Judge

 

 

 

 

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

 

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

 

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

 

 

 

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

 

 

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

 

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

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

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Pre-flight checklist

Posted on June 15, 2016 by suesspiciousminds

 

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.

 

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