Clarification of reasons – what is appropriate?

Emma Greenhalgh and Joanne Oakes highlight a recent case which raised important guidance in respect of what is appropriate when requesting clarification and when this may go too far as to ‘bamboozle’ the judge.

The background to Re YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 was summarised by Baker LJ, as follows:

11. For the purposes of the appeal, the facts can be summarised briefly. Y’s parents met in 2019 and are in their late twenties. Both parents have cognitive difficulties and as a result have been assisted by intermediaries during these proceedings. As I said at the end of the hearing, this Court is grateful to the intermediaries for the work they have done in this difficult and sensitive case.

12. On 10 September 2021, Y was born by Caesarean section after the mother experienced difficulties during labour. Following discharge from hospital, Y and his parents lived with the maternal grandparents until early October 2021, when they moved into a one-bedroom f lat. Although the mother and the grandmother have had a fractious relationship in the past, the grandmother provided considerable support with childcare, especially when Y and his parents were living in her home. By contrast, the father provided relatively little direct parenting support. It was the mother’s evidence that there was only one brief occasion, lasting about twenty minutes, when she left Y in the father’s sole care. There were other occasions when he looked after Y while she was in the flat.

13. It was the mother’s evidence that on 3 October 2021, when Y was aged three and a half weeks, she noticed marks on his left forearm and right elbow. She sent photographs of the marks to the maternal grandmother. At that time, the marks were not brought to the attention of any medical professionals.

14. On 4 November 2021, the mother observed further extensive bruising to Y’s right forearm. She again sent photographs of the bruising to the grandmother who advised her to contact the GP. T he mother contacted the surgery about a rash on Y’s arm, chest and head. The GP advised the mother to take Y to hospital. The mother did not follow this advice. According to the maternal grandmother, the mother told her that she made this decision after talking to the father. In the subsequent proceedings, the father described an incident in which he thought the bruises had been sustained accidentally while he was holding Y as he was standing up from a chair.

15. On 24 November 2021, ZZ, a work colleague of the father, stayed overnight at the family home. According to the parents, he was the only person to have stayed with the parents following Y’s birth and had visited the family on only one earlier occasion. In the proceedings there was extensive evidence about what happened that evening, which as summarised below the judge set out in her judgment.

16. On the following day, 25 November, Y was taken to hospital by the mother who complained that he was unable to move his right leg. He was observed to have bruising on his back. Radiological examination revealed that he had sustained a fracture of the right tibial metaphysis along with soft tissue swelling, which medical evidence indicated was likely caused by excessive shearing force such as yanking or pulling of the limb (described in the medical reports as a “bucket handle fracture”), and fractures to his left posterior 6th rib in the lateral aspect and to his lateral 12th rib, both said to have been caused by compression / squeezing or a direct blow.

17. The hospital staff contacted the local authority children’s services and, following his discharge from hospital on 9 December 2021, Y was placed into foster care pursuant to an agreement between the local authority and his parents under s.20 of the Children Act 1989. The police started an investigation in the course of which they interviewed the parents, maternal grandmother, and ZZ.

18. On 5 January 2022, the local authority started care proceedings and Y was made subject of an interim care order on 18 January. Case management directions were given for a fact-finding hearing, including permission to instruct a number of medical expert witnesses. In addition to the parents and the child, the maternal grandparents were joined as respondents and separately represented and ZZ was joined as an intervenor. The local authority prepared a detailed schedule setting out twenty four findings which it invited the judge to make. In short, they sought findings that:

(1) the fractures and bruises identified on admission to hospital, and the bruises and abrasions shown on the photographs taken on 3 October and 4 November, were inflicted by one (or more) of the following: the mother, the father, the maternal grandmother, the maternal grandfather or, in the case of the injuries seen on admission to hospital, ZZ;

(2) all of the injuries were the consequence of the application of excessive and inappropriate force;

(3) in the event that the injuries were not caused by the mother and/or the father, they failed to protect Y and both failed to seek timely medical attention for the injuries, and

(4) as a consequence, the threshold criteria under s.31(2) of the Children Act 1989 were satisfied.

19. A fact-finding hearing was initially listed in October 2022 – eleven months after the child was admitted to hospital – but was adjourned at the pretrial review when the father successfully applied to instruct an expert to undertake genetic testing. The hearing eventually took place over fourteen days between April and July 2023. Nine witnesses gave oral evidence. The hearing was delayed by the requirement to allow regular breaks in the hearing in accordance with the established practice in cases where one or more of the parties is assisted by an intermediary. By the end of the hearing, the local authority was no longer seeking findings against the grandparents or ZZ.

20. On 31 July 2023, the judge delivered an oral judgment in which she found that all of the injuries had been inflicted by the father. In the order made at the conclusion of the hearing, the judge listed the case for a further case management hearing on 4 September 2023 and for final hearing over nine days in January 2024. The purpose of the hearing in September was stated to be for formal handing down of the judgment, consideration of any requests for clarification and applications for permission to appeal, and general timetabling. Amongst other case management directions, the judge directed the local authority to apply by 7 August for a transcript of the judgment, the cost to be borne equally by the local authority and the five respondents. It was recorded that the transcript would be amended to include a section on the law which the judge had omitted.

21. I set out the subsequent events in more detail below. At this stage, suffice it to say that initial requests for clarification were submitted during August to which the judge declined to respond until the transcript was produced, save to confirm that she had made three findings which the local authority pointed out had been omitted from the judgment, in particular a finding about the mother’s failure to seek medical advice for Y. In the event, the local authority did not apply for the transcript as directed and the hearing on 4 September was adjourned.

22. On 6 October, the parties received a written version of the judgment, based on a transcript of the judgment delivered orally but omitting some parts and introducing others, including the section on the law and details of the finding of failure to protect.

23. At a case management hearing on 12 October, the parties sought additional clarification of the judgment. On 19 October, the judge delivered a supplemental judgment in response to those requests.

24. At a further case management hearing on 7 November 2023, the father, supported by the local authority and guardian, sought yet further clarification of the judgment. The judge responded to those requests the same day. On 9 November, an application by the local authority for permission to appeal was refused. The judge extended time for filing a notice of appeal to this Court to 14 November.

25. On 29 November 2023, the local authority f iled a notice of appeal out of time against the judge’s findings and seeking a rehearing. On 7 December, I extended time for filing the appeal notice, granted permission to appeal and stayed the proceedings pending determination of the appeal. On 13 December, I varied the terms of the stay to permit a hearing about Y’s interim placement to go ahead. At a hearing on 14 December, all parties agreed that Y should move to live with his maternal grandparents under the interim care order.

As can be seen by the background there was more than one request for clarification. Baker LJ identified good and bad practice within the parties’ ‘litany of requests and responses’:

“The local authority was right to point out that the judge had not dealt with the issue of failure to protect. It was also plainly right to inquire whether the judge had found that the mother was covering up for the father as a sentence in the oral judgment to the effect that she was not covering up was removed from the written version. But a number of the other requests were inappropriate. The email sent on behalf of the mother on 11 October identifying certain aspects of the evidence and inviting the judge to reconsider her findings was a glaring example of using the process to reargue the case. The final request on behalf of the father took the whole process to another level. It sought findings that had not been raised previously, made fresh submissions in support of those findings, relied on additional evidence filed by the father, and warned that, if the judge declined to make the clarifications sought, an application would be made for permission to appeal.

Overall, the scale of this clarification exercise was wholly unreasonable… I am sure that counsel were not intending to “bamboozle” the judge (to use Coulson LJ’s word) by their repeated requests but she would certainly be forgiven for feeling bamboozled. In some instances, counsel were plainly trying to lead the judge to refine her judgment so that her ultimate findings were closer to the outcome favoured by their client.”

Appeal

The question for the Court of Appeal, according to Baker LJ, was ‘whether at the end of this chaotic process the integrity of the judgment has been fatally undermined’.

Baker LJ summarised the appeal to be ‘based principally on perceived differences and inconsistencies in the judge’s reasoning between the original judgment and the responses to requests for clarification’. In oral submissions the local authority acknowledged that it had not been minded to appeal following the delivery of the judgment but had been obliged to do so following the clarifications and the fact-finding needed to be reheard by a different judge as ‘the judge’s ultimate analysis did not reflect the evidence and failed to provide an accurate basis on which assessments could safely be conducted to enable decisions to be made about the child’s future and the parents’ role in his care’.

The local authority put forward five grounds of appeal.

1) The finding that all the injuries suffered by Y were the consequence of a ‘lack of care’ by the father was not supported by the expert medical opinion.

2) The medical records and expert evidence did not support the court’s finding that the parents would have been unaware that Y had suffered significant injuries.

3) The finding that the father had not intended to cause injury to Y was incompatible with the weight that the court had attached to previous threats of harm made by the father to Y, which the judge relied upon in concluding that the father had caused all of the injuries.

4) The judge failed to sufficiently consider whether the father could have caused each injury suffered by Y, determining the issue of perpetration on grounds of propensity rather than opportunity, and failing to have sufficient regard to the absence of opportunity to cause injury without being detected by the mother.

5) The finding that the mother was unaware that the father had injured Y on the evening of 24 November 2021 and had therefore not colluded with the father to blame ZZ for the leg fracture supported by the expert medical opinion, as to how Y would have reacted following this injury, or by the evidence provided by his parents.

The appeal was ultimately unsuccessful however, the most important aspect of this case was the guidance given by Baker LJ regarding clarification as follows:

90. Finally I return to the vexed issue of requests for clarification. It may be, as Ms Fottrell suggested during the appeal hearing, that it takes time for the messages from reported cases in this Court to get through. But, if I may adopt the words of Sir Nicholas Wall P quoted above, it is high time they did. This case illustrates that the procedure is still being misused. I would therefore draw the following lessons to be learned from this case, in the context of other cases which have involved similar examples of the practice being misused:

(1) A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child’s welfare needs.

(2) When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.

(3) Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.

(4) Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.

(5) Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

91. The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope that hereafter counsel will confine requests to matters which are material to the proceedings and that judges will deal robustly with requests that exceed what is permissible.

We must not misuse the process!

Emma Greenhalgh and Joanne Oakes are barristers at 9 St John Street.