Re W (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1140 |
| Date | 2016 |
| Year | 2016 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division) - Jurisdiction - Appeal by witness - Judge giving fact-finding judgment in care proceedings - Judgment containing adverse extraneous findings against witnesses without prior warning - Whether witnesses entitled to appeal - Whether appeal possible where no challenge to judge’s order -
The local authority brought care proceedings in respect of children on the basis of allegations that they had been sexually abused by family members. Following a fact-finding hearing the judge, in a judgment given in private, rejected the allegations and criticised the actions of the authority, a social worker (“SW”) and a police officer (“PO”), finding, inter alia, that SW and PO, with others, had been involved in a joint enterprise to obtain evidence to prove the allegations irrespective of any underlying truth and the relevant professional guidelines, that both SW and PO had lied to the court with respect to an important aspect of the investigation and that the local authority and the police generally, but SW and PO in particular, had subjected the child to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. There was no challenge to the judge’s determination dismissing the sexual abuse allegations nor to his order, but SW and PO, neither of whom had been a formal party to the proceedings, together with the local authority, appealed against the judge’s adverse and extraneous findings against them on the basis that they had been given no opportunity to know of or meet the criticism during the trial, in breach of their rights under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. SW and PO also appealed on the further basis that the process was so unfair as to amount to a breach of their rights to respect for their private and family life under article 8 of the Convention. No issue was taken before the court as to the potential applicability of article 8 to the professional lives of SW and PO.
On the appeals and on the question, inter alia, whether SO and PO had the necessary standing to appeal the judge’s findings—
Held, allowing the appeals, (1) that, although it was common ground that neither SW nor PO had been full parties to the care proceedings, they had each achieved the status of intervener, in so far as that status was recognised by the family courts, and were therefore additional parties to the proceedings under FPR r 12.3(3)(4) with respect to the stage of the proceedings relating to the terms of the judgment, which was sufficient to afford them a right of appeal under section 31K of the Matrimonial and Family Proceedings Act 1984, as inserted; that, in any event, it was unnecessary to establish with certainty the precise procedural status of SW and PO since CPR r 52.1(3)(d) enabled the court to entertain an appeal from SW and/or PO irrespective of whether they had been formally made parties or interveners in the lower court; and that, accordingly, there being no issue as to the local authority’s party status, all three appellants could be heard on appeal (post, paras 37, 38, 40–44, 123, 124).
(2) That, on the question whether an appeal was possible in relation to subsidiary internal findings in the judgment unrelated to any specific order, a party or witness who was to be the subject of a level of criticism sufficient to trigger protection under Convention rights to procedural fairness, had to be given proper notice of the case against him; that at no stage during the four-week hearing had the judge given voice to the very substantial and professionally damning criticisms which had surfaced for the first time in the judgment; that by keeping those matters to himself during the hearing and failing to afford the witnesses any opportunity to know of the critical points and to offer any answer to them, the judge had conducted a process which was intrinsically unfair; that the private life rights of SW and PO under article 8 would be breached if the judgment, in so far as it made direct criticism of them, were allowed to stand in the final form proposed by the judge; that, furthermore, given the degree to which the process adopted fell short of the standard of fairness to which those affected were entitled, the same conclusion, in the context of article 6 and the common law, applied with respect to the adverse findings made against the local authority which had not been canvassed during the hearing and were outside the issues in the case; that the judge’s findings themselves were a “judicial act” which, on the facts, was capable of being held to be “unlawful” under section 7(1) of the Human Rights Act 1998 and therefore the proper subject of an appeal, without having to consider whether it was “any judgment or order”, “a decision of the court” or a “determination”, within the meaning, respectively, of section 16 of the Senior Courts Act 1981, section 77 of the County Courts Act 1984 and section 31K of the Matrimonial and Family Proceedings Act 1984, which were the relevant statutory provisions establishing the jurisdiction of the Court of Appeal (Civil Division); that, in the circumstances, by the end of the first instance process each appellant had become a “party” to the proceedings and the Court of Appeal had jurisdiction to entertain their appeals pursuant to sections 7 and 9 of the 1998 Act on the basis that they asserted that the judge had acted in breach of their rights under articles 6 and 8 of the Convention; that the judge’s consideration of submissions by the appellants after he had given judgment did not provide an adequate remedy; and that, in light of the wholesale failure to achieve a fair trial, those matters which the judge had found proved against SW, PO and the local authority which were outside the parameters of the issues in the case and were the subject of the appeal were to be set aside as having no further validity and regarded as if they had never been made (post, paras 45, 46, 65, 67, 88, 92–94, 97, 103, 109, 118, 121, 122, 123, 124).
Per curiam. (i) If, for some reason, an individual fails to achieve the status of appellant by a straightforward application of the relevant court rules and section 31K of the Matrimonial and Family Proceedings Act 1984 in circumstances where it is established that the individual’s rights under article 8 of the Convention have been breached by the outcome of the proceedings in the lower court, the appeal court has a duty under section 3 of the Human Rights Act 1998 to read down section 31K and the rules in such a manner as to afford the individual a right of appeal (post, paras 42, 123, 124).
(ii) Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness, consideration should be given to: (a) ensuring that the case in support of such adverse findings is adequately put to the relevant witness, if necessary by recalling him or her to give further evidence; (b) prior to the case being put in cross-examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material; (c) investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness. Once the judge came to form the view that significant adverse findings might be made which were outside the case as it had been put to the witnesses, he should have alerted the parties to the situation and canvassed submissions on the appropriate way to proceed. One option at that stage is for the judge to draw back from making the extraneous findings, but if, after due consideration, there remains a real possibility that adverse findings may be made, the judge should establish a process which meets those requirements (post, paras 94–96, 108, 123, 124).
(iii) The circumstances of the present case are highly unusual. Although the right to fair process under article 8 or at common law may in principle apply to an expert witness who attends court and gives evidence, it will be very rare that such a witness’s fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such as legal advice or representation during the hearing. If criticism is to be made of such a witness it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross-examination (post, paras 101–102, 123, 124).
The following cases are referred to in the judgment of McFarlane LJ:
B (A Minor) (Split Hearings: Jurisdiction), In re...
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