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“A Judge too far”

 

 

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?

I still haven’t found, what I’m looking for – or, going off-menu

 

A quick discussion of the Court of Appeal decision in RE J-L (Findings of Fact : Schedule of Allegations) 2012 

 

 

On my traditional grumbles about the Court of Appeal the first is unfounded – they have given it a properly descriptive name. The second, that an important decision is made but no judgment published, is still there, albeit that the decision was less than a week ago, so no doubt it is in the post.

 

 

So, the blog is with the caveat that I haven’t seen the full transcript yet. But interesting, and potentially significant points are raised.

 

 

Here’s the Family Law summary, prepared with admirable economy, by Samantha Bangham

 

 

 

(Court of Appeal, Longmore, McFarlane LJJ, 29 November 2012)

 

Following the breakdown of the parents’ relationship, the children lived with the mother for a period. Both parents had issues with drug and alcohol abuse during the relationship but when the mother’s use continued the children were removed and placed with their father. Three years later one of the children made disclosures of sexual abuse by their mother while in her care.

 

During a fact-finding hearing the judge found none of the specific allegations contained in a schedule had been proved. However, due to the comments made by the children he found their sexual knowledge to be of concern. He made alternative findings that they had witnessed adult sexual activity while in the mother’s care. The mother appealed.

 

The appeal would be allowed. While it was understandable that the judge would find the children’s comments concerning it had not been open to him to make alternative findings when those contained in the schedule had already been found unproved.  

 

 

Now, how that sounds to me (and it may prove different in the full transcript) is that the Court of Appeal effectively found that the Judge could have legitimately made a finding that the children had been exposed to adult sexual activity whilst in mother’s care IF that had been one of the items on the schedule of findings, but was not allowed to go ‘off-menu’ and make a finding of his own motion based on what the evidence led him to conclude.

 

I can see arguments either way on that. On the one hand, a person should be entitled to see the case being put by the applicant, and to see what the case they have to answer is. On the other, if a Judge hearing all the evidence considers that what happened is something other than what is set out in the schedule of findings BUT is something more than “X is alleged and X did not happen”, it seems to me that the Judge is well placed to do that.    I tend to settle on the role of a fact-finding being a judicial attempt to find the truth about matters, and I would prefer that the Judge had the ability to set out the findings and the ‘truth’ demonstrated by the evidence and not be hamstrung by the way that a Schedule of Findings has been drafted, if that conclusion is not amongst the list of findings.

 

It may be that what is needed when drafting a schedule of findings from now on is to plead in the alternative, so that the Judge looking at the menu of possible findings will see the one they consider apposite, even though it is not the dish that the applicant wishes them to choose.

 

That being the case, we are going to get much longer schedules of findings. And the person seeking those findings may feel a sense of disquiet that rather than simply running the case that they assert is true, they are obliged to put in some lesser possibilities and explanations, to avoid the possibility of the full-blown finding or nothing.