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Court proceedings were a shambles

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

https://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  2. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  3. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  4. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  5. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.
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“If you change your mind, I’m the first in line”

 The Supreme Court decide that a Judge CAN change their mind after delivering a Judgment.

I blogged about the case in the Court of Appeal here :-

https://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

 In brief, a Judge heard a finding of fact hearing about an injury to a child, gave a judgment that the father was the sole perpetrator. After judgment, father’s representative sent in some aspects for clarification  (i.e things that they considered had not been properly considered in the judgment) and some months later, at another hearing, the Judge announced that she had changed her view of the case and that it was not possible to exclude mother from having caused the injuries, and stopped short therefore of a positive finding that father had caused the injuries.

 The mother, who had of course, been off the hook, in the initial judgment, appealed.

 The Court of Appeal decided, two to one, that the Judge could not change her mind about the judgment she had given (save for if some fresh evidence had come to light) and that she was bound by her first judgment.

 The father, understandably, having been all the way in, then half-way out, then all the way in again, appealed that.

 The Supreme Court determined the issue in Re L and B (Children) 2013    

 

http://www.bailii.org/uk/cases/UKSC/2013/8.html

 One of the things that troubled me about the Court of Appeal decision was the unspoken but inexorable consequence that although an advocate unhappy with a judgment is told to raise points that needed clarification or exploration with the judge prior to any appeal, if doing so cannot lead to a Judge changing their mind, it seems a rather fruitless exercise.   I think for that reason, the Supreme Court were right in giving the Judge power to change the findings made if the representations swayed her.

 The Supreme Court concluded here that what had happened in reality, was the Judge reconsidering the conclusions reached in the light of the representations made by father’s counsel, and had changed her mind accordingly.

 

  1. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

Exercising the discretion in this case

  1. If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the “general slackness” that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind 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” (para 56). Sir Stephen Sedley held that something more than a change in the judge’s mind was required, because “it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice” (paras 79, 80). Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. . . . the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis”. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.
  1. The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the child’s placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.
  1. Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. As the court pointed out in Re Harrison‘s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.
  1. For those reasons, therefore, we ordered that the father’s appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judge’s decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half-brother and maternal grandparents under a care order and, after a settling-in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.

 

 The Supreme Court then took a look at the issue of whether a Judge could change her mind post the order being sealed. (In this case, the sealing of the order had taken place long after the judgment had been given, or maybe it did, and there is authority to suggest that a judgment cannot be changed after the order is sealed or maybe there isn’t)

 

  1. On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?
  1. The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her daughter in a fact-finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part-heard, Munby LJ continued, at para 21:

“Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”

  1. This court has since agreed with that proposition. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that:

“It is now well-settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)

  1. There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the child’s welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the child’s injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal.
  1. This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order.
  1. Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.
  1. Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child’s injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother’s apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.
  1. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.
  1. On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not.
  1. In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.
  1. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.
  1. On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.

 

 

 

They then realise that this is really really really difficult, and sidestep the question in a way that any rugby fan would admire.

 

The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place.

 

That, for my mischievous mind, raises the interesting question of what happens if a Judge delivers a finding of fact judgment, and instantly in front of the parties, produces an order that she has prepared setting out the findings that were made and stamps it. 

It seems that the judgment is then frozen, and can’t be altered, and that she would not be entitled to change her mind despite any representations, and is simply inviting the wounded parties to put up and appeal, or shut up.   That’s probably grounds for appeal in itself.

Probably good practice is for a short window of opportunity (say the appeal window) to be given, before the order is then stamped, and the Judge considers only representations made within that window.

But, what if, as happened here, father makes representations, and the judgment changes? Does mother then get a second window to make her own representations, to try to change the judge’s mind a second time?  Her window of appeal must, it seems to me, start from the time that the Judge settles an order arising from the judgment  (you appeal orders, not findings). 

And if mother succeeds, is that the end of it, or does father get another crack at it?

Could we end up with an interminable oscillation between judgment and representations to alter that judgment?

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

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.