A and L (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Lord Justice Tomlinson,Lord Justice Patten |
| Judgment Date | 27 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1205 |
| Docket Number | Case No: B4/2011/1594 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 October 2011 |
[2011] EWCA Civ 1205
Lord Justice Patten
Lord Justice Munby
and
Lord Justice Tomlinson
Case No: B4/2011/1594
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION
HIS HONOUR JUDGE COMPSTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Alison Ball QC and Mr Rohan Ramdas-Harsia (instructed by Cook Taylor) for the appellant (mother)
Mr Stephen Bellamy QC and Miss Helen Soffa (instructed by local authority) for the local authority
Mr Anthony Hayden QC and Mr Tim Hussein (instructed by H E Thomas) for the father
Mr Bernard Huber (of Edwards Duthie) for the children's guardian
Hearing date: 18 October 2011
This is an appeal, pursuant to permission granted by Black LJ on 10 October 2011, from a judgment of His Honour Judge Compston in the Principal Registry of the Family Division on Friday 27 May 2011 The judge was conducting a fact-finding hearing in the course of ongoing care proceedings relating to two children, A, a girl, born in May 2003, and her brother, L, born in October 2006.
So far as material for present purposes the judge found that both A, in particular, and to a lesser extent L had been sexually abused by one or more of three adults (X, Y and Z) who were friends of their mother. He exonerated the children's father so far as the sexual abuse was concerned, and likewise exonerated the children's two grandmothers. But he found that their mother "went along with it and cooperated with it". "I find that the mother was involved." "Undoubtedly, A was seriously abused by the mother's friends … and sadly the mother, not quite as badly as her friends, was involved in the sexual abuse of her daughter."
The mother now appeals, represented by Ms Alison Ball QC and Mr Rohan Ramdas-Harsia, who had appeared for her before Judge Compston. The appeal is resisted both by the local authority, represented by Mr Stephen Bellamy QC (who did not appear before the judge) and Miss Helen Soffa (who did), and by the father, represented before us, as before the judge, by Mr Anthony Hayden QC and Mr Tim Hussein. The guardian, here, as below, is represented by Mr Bernard Huber. In relation to the appeal the guardian's stance is "neutral".
The hearing before Judge Compston had lasted for some eight days, during which he heard from eight witnesses, viewed two ABE video interviews of A, and considered extensive written material. This part of the hearing concluded on Thursday 26 May 2011. The judge invited written submissions from all parties, including the guardian. They were lodged before the hearing resumed the following morning and ran in total to some 30 pages. In addition to these materials there was a very detailed 27 page analysis by Ms Ball of the evolution of the allegations of sexual abuse.
The oral submissions finished at about 12.30 and at 2.30 Judge Compston began to deliver an extempore judgment. It runs to 15 1/2 pages of double-spaced transcript. At the end of his judgment the judge invited counsel to raise "any particular point which any of you think I have got wrong or you think I should cover". Mr Hayden, Miss Soffa and Mr Huber each did so. Ms Ball did not.
The same day the judge made an order fixing the final hearing before him on 31 October 2011.
Mr Ramdas-Harsia subsequently applied to Judge Compston on 10 June 2011 for permission to appeal. The application was supported by a written note dated 9 June 2011 which Ms Ball had prepared, foreshadowing what now appears in the mother's grounds of appeal.
The note identified the mother's central complaint as being that the judgment, so far as it related to the finding that she was directly involved in the sexual abuse of her children, was wholly deficient in its reasoning and analysis, provided no sufficient explanation for the basis of the findings, made no findings as to the mother's credibility and failed to address or examine the reliability of A's allegations in terms of a number of factors that were then set out. The note concluded with the assertion that what were said to be the deficiencies in the judgment are "too extensive" to be corrected in accordance with English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, and Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035.
The judge refused permission to appeal in a short judgment of which we have a note but no transcript. No reference appears to have been made to the Re B point, either during the hearing or in the judgment.
The notice of appeal is dated 14 June 2011. The progress of the appeal was thereafter delayed while the transcript of Judge Compston's original judgment was obtained. It did not arrive until 4 August 2011.
On 10 October 2011 Black LJ gave the mother permission to appeal on the papers. She said "The judge's task was a complex one". She explained why. She continued:
"There appears to be some strength in the argument that the trial judge needed to deal with issues such as this in some depth in order to explain why he was persuaded of the truth of the allegations he found proved in relation to the mother … It is arguable that his analysis of such issues was too superficial."
Black LJ was under the impression that the final hearing remained fixed for 31 October 2011. Steps were therefore taken to expedite the hearing of the appeal. Only on the morning of the hearing, 18 October 2011, did we discover that as early as 8 September 2011 the parties had been discussing between themselves the need for an adjournment of the final hearing. They raised the matter with the Principal Registry on 13 September 2011, although it was only the day before the hearing of the appeal, on 17 October 2011, that the final hearing before Judge Compston was actually vacated. It is, to say the least of it, most unfortunate that this court was not kept abreast of these developments by the parties. For my part I would wish to emphasise that it is the collective responsibility of all the parties' legal representatives to ensure that this court is notified promptly of any developments which may have a bearing on how quickly or otherwise an application or appeal needs to be dealt with.
The practice to be adopted in cases where there is concern about the adequacy of the trial judge's reasoning is set out in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [25]–[26], and Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531, para [41].
As this court has frequently pointed out, and I repeat, this practice applies as much in family cases as in ordinary civil appeals: see, for example, in addition to Re T and Re B, Re A (Child Abuse) [2007] EWCA Civ 1058, [2008] 1 FLR 1423, Re M (Fact-finding Hearing: Burden of Proof) [2008] EWCA Civ 1261, [2009] 1 FLR 1177, and Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, [2010] 2 FLR 46. I draw attention in particular to the robust observations of Wall LJ (as he then was) in Re M, paras [36]–[39], in the course of a judgment with which Sir Mark Potter P, his predecessor as President, agreed.
For present purposes there are two points I should like to emphasise.
First, it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process.
Second, and whether or not the advocates have raised the point with the judge, where permission is sought from the trial judge to appeal on the ground of lack of reasons, the judge should consider whether his judgment is defective for...
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