Re A and Another (Children) (Fact-Finding: Inadequate Reasons)
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Date | 2012 |
| Year | 2012 |
| Court | Court of Appeal (Civil Division) |
Care proceedings – Fact-finding hearing – Sexual abuse – Care proceedings being initiated in relation to two children – Fact-finding hearing taking place – Judge finding that children had been sexually abused by one or more of mother’s friends and that mother had been involved – Mother appealing on basis that judgment deficient in reasoning and analysis – Whether interests of fairness requiring that case be remitted to judge for provision of further reasons.
A fact-finding hearing took place in the course of care proceedings which had been commenced in relation to two children, A and L. On 27 May 2011, the judge found that A, and to a lesser extent L, had been sexually abused by one or more of three adults who were friends of the mother. The father and the children’s two grandmothers were exonerated of sexual abuse, but the judge found that the mother had co-operated with, and been involved in, the abuse. At the end of his judgment, the judge invited counsel to raise any points which he had failed to cover or on which they believed him to have erred. Counsel for the mother failed to raise any matter at that stage. On 10 June 2011, the mother applied to the judge for permission to appeal, her application being supported by a written note which alleged that the judgment, so far as it related to the finding that she had been 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 specified factors. The note concluded with the assertion that the judgment’s alleged deficiencies were too extensive to be corrected in accordance with English v Emery Reimbold & Strick Ltd, DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd, Verrechia (trading as Freightmaster Commercials) v Comr of Police of the Metropolis [2002] 3 All ER 385. Although the judge dismissed the mother’s application, permission to appeal was subsequently granted on the papers by another judge.
Held – The practice to be adopted in cases where there was concern about the adequacy of the trial judge’s reasoning was set out in English v Emery Reimbold & Strick Ltd [2002] 3 All ER 385 at [25]–[26] and Re T (a child: contact)[2003] 1 FCR 303 at [41]. It applied as much in family cases as in
ordinary civil appeals. For the purposes of the instant case, there were two points which had to be emphasised. First, it was 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 arose 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 had raised the point with the judge, where permission was sought from the trial judge to appeal on the ground of lack of reasons, the judge had to consider whether his judgment was defective for lack of reasons and, if he concluded that it was, he had to set out to remedy the defect by the provision of additional reasons. If, nonetheless, as in the instant case, neither of those things happened, the appellate court could proceed to decide the application for permission to appeal, or the appeal itself, on the basis of the judgment as it stood. However, in an appropriate case the appellate court could, either of its own initiative or on the application of the parties, remit the case to the trial judge (if need be, adjourning the hearing in the meantime) with an invitation to him to provide additional reasons for his decision or clarification of an ambiguity. Sometimes the court would decide that that was simply not possible and that the defects in the judgment under appeal were so egregious that it had no choice but to allow the appeal and remit the entire case for a rehearing before a different judge. Where the appellate court decided to remit the matter to the trial judge, whether for clarification or amplification, it would usually be appropriate for the court itself to define those distinct areas on which his assistance was being invited. How the trial judge decided to proceed had, in the first instance, to be a matter for him. Normally, however, the judge would not require further submissions, let alone any further evidence. It was well established that it was open to a judge to amend his judgment, if he thought fit, at any time up to the drawing of the order. In the context of a fact-finding hearing, it had to be borne in mind that there might not be any immediate order at all; it was well established that the absence of an order was no bar to an appeal. Furthermore, a split hearing was merely part of the whole process of trying the case; it was not a separate exercise. The findings at a fact-finding hearing were not set in stone so as to be incapable of being revisited in the light of subsequent developments such as where further material emerged during the final hearing. Thus in such a case the judge was entitled at any time, including at the final hearing, to reconsider his earlier findings. The relevant order for that purpose was the final order made at the end of the care proceedings. In the instant case, the interests of justice, fairness to all the parties and fairness to the trial judge all required that the case be remitted to the judge, with an invitation to provide such further reasons on certain specified matters as he might think appropriate by way of elucidation, clarification, elaboration or otherwise of his judgment. In the meantime, the appeal would be adjourned part-heard, to be resumed before the same constitution once the judge’s response was to hand (see [13]–[22], below); English v Emery Reimbold & Strick Ltd [2002]
3 All ER 385, Re B (appeal: lack of reasons) [2003] 2 FLR 1035, Re T (a child: contact)[2003] 1...
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