Public law judgments: When to seek clarification and when to ask for permission to appeal

The Court of Appeal recently allowed an appeal by a father against findings that he had sexually abused his daughter, on the basis that the judge’s analysis was insufficient and flawed. Joanne Oakes examines the ruling.

The case of Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 was one where public law proceedings arose from private law proceedings where a father had an application for contact with his daughter. The parents had separated before the child’s birth in January 2016 and it was found that the mother had not been supportive of the father’s contact. The mother alleged in November 2018 that the father had sexually abused O and a subsequent s.47 investigation found ‘very little evidence’ to support this. The father made an application for contact and this led to contact in the community. The father took O swimming on the 27 July 2019 and on the 2 August 2019 the mother noticed blood on the toilet paper when wiping O’s bottom.

O was seen by a GP and a paediatric forensic physician who concluded that there were signs of penetrative anal abuse.

Public law proceedings followed and an independent consultant paediatrician was instructed, Dr Crawford. O had subsequently alleged that her maternal grandfather may have sexually abused her and he was joined as an intervenor.

A finding of fact hearing was heard over 8 days. Each party’s position was as follows:

• Local authority – sought findings that O had been sexually abused by the mother or father;
• Mother – sought findings that O had been sexually abused by the father;
• Father – sought findings that O had been sexually abused by the mother, had failed to protect her, encouraged O to believe she was abused by the father and alienated O against the father;
• No party sought findings against the maternal grandfather.

The judgment wasn’t handed down until the 16 November 2020, the hearing having concluded in August 2020. The judge made findings that the injuries were caused by the father and he had behaved in a sexually inappropriate way towards O in 2018 and 2019. The court made a Child Arrangement Order supported by an Interim Supervision Order for O to live with her mother. The father applied to the Court of Appeal.

Peter Jackson LJ granted permission to appeal and stayed the orders.

Appeal

The Court of Appeal overturned the findings of sexual abuse and the matter was to be reheard.

Notes for practice:

The interesting analysis from this case is where to ask for clarification on a judgment and where the judgment is so flawed that an application to appeal is appropriate.

Baker LJ set out the earlier relevant decisions and the current practice direction and held that:

“...where the omissions [from the judgment] are on a scale that makes it impossible to discern the basis for the judge’s decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal.”

Peter Jackson LJ held that: “It is of course the responsibility of the trial judge to give sufficient reasons. But all judgments are capable of improvement and where there has been what the Practice Direction refers to as ‘a material omission from a judgment’ the court is required to ‘provide additions’, either on its own initiative or on request. That will be particularly suitable where an issue has escaped attention or where a part of the reasoning is not fully clear or needs amplification. Where the line is to be drawn will depend on the circumstances, but there will come a point where what would be required would not be additions but foundations. In those circumstances, the difficulties in returning to the trial judge were explained by Wall LJ in Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, when, speaking of that case, he said:

“47. The difficulties about the Emery Reimbold solution are, in my judgment, legion. I put on one side the fact that this was a reserved judgment. What strikes me with greater force – if my analysis is correct – is that the judge has made up his mind without properly considering the evidence of Dr. T, Messrs M and F and the guardian. Were we thus to invite him to reconsider, he would be bound to reject their evidence. To put the matter another way, the conclusion which he has reached would render impossible a proper judicial discussion of that evidence. Equally, were the judge to change his view and find the threshold satisfied, neither the mother nor the father would have any confidence in the judge’s final conclusion.’”

Joanne Oakes is a barrister at 9 St John Street.