Failure in childcare case to identify cognitive difficulties of appellant and to make appropriate participation directions “amounted to serious procedural irregularity”, Court of Appeal rules

Failure to identify an appellant's cognitive limitations led to procedural unfairness in a case involving children, the Court of Appeal has found.

In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8  Lord Justice Baker said this did not mean the judge who heard the original case was necessarily wrong, but that the outcome might have been different had appellant A’s situation been apparent.

In the case concerning an unnamed local authority a fact-finding hearing involved a girl, S, then aged six.

The principal issue though was the cause of injuries sustained by another child, J, a boy then aged five, who was not the subject of proceedings but became their focus because his injuries were sustained while in the care of S's mother X and father Y.

HHJ Nisa had found that most of J's injuries were accidental but some had been inflicted by J's mother, A, who appealed against these findings.

S is living with other family members and the local authority has started further care proceedings in respect of J and his brother.

A series of disputes was heard about whether and how J had been injured and the findings sought by the local authority also related to allegations of domestic abuse by Y towards X and A's misuse of ketamine.

Representations were made on behalf of A as to the appropriateness of seeking findings about her care of J in proceedings which did not relate to him.

The court rejected this argument and counsel for A made an application for permission to appeal that decision, which was dismissed and has not been renewed.

A’s solicitors went to the Court of Appeal initially on six grounds including that of procedural irregularity or unfairness.

They said the court made findings against her which exceeded those sought in the schedule of findings and did not provide any reason for doing so.

Baker LJ said: “We have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings.”

He said the appeal judges were confident Judge Nisa would have taken a careful approach to A's evidence had she been aware of her difficulties.

But no one at the court identified the possibility that A might be a vulnerable person because of impaired level of comprehension “and we are satisfied that she was fairly treated within the context of what was then known”.

A's difficulties were not immediately evident even to her barrister “who only became concerned about her client's level of understanding towards the end of the hearing”.

Baker LJ said: “We have reached the clear conclusion that the failure in this case to identify A's cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust.”

He explained: “We are not saying that the judge's findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome.

“We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.”

Baker LJ said that, in those circumstances, the Court of Appeal had decided that it was neither necessary nor appropriate to consider the remaining grounds for which permission had already been granted. "Having concluded that the judge's decision was unjust because of procedural irregularity, there is no point in this Court conducting a critique of the judge's findings. If there is to be a rehearing of the fact-finding hearing, it would be unhelpful for this Court to make any observations about the findings we are setting aside."

The judge noted that where findings are set aside on appeal on procedural grounds, the normal practice was for a rehearing to take place before a different judge.

"That may well be appropriate in this case which involves serious allegations of assault of a child which if proved would plainly give rise to a likelihood of significant harm to any child in the care of the perpetrator. We were informed, however, that S is now settled in her family and the local authority has no plan to remove her. We were also told that, in the care proceedings concerning J and his brother, an expert parenting assessment is due to be completed very shortly. J and his brother remain at home with their mother under interim supervision orders. It may therefore be the case that, notwithstanding the serious allegations which the local authority has rightly brought before the court, a rehearing would be neither proportionate nor in the interests of any of the children in these two proceedings," Lord Justice Baker said.

"We are not in a position to make a decision about this, not least because the proceedings concerning A's children are not before us. It will, however, be a difficult decision involving a number of conflicting issues. Accordingly, the best course is to remit these proceedings to the Family Division Liaison Judge for the South-Eastern Circuit, Williams J, and to invite HHJ Nisa to transfer the proceedings concerning A's children to Williams J so that he can reach a decision as to whether there should be a rehearing of the fact-finding hearing as to the cause of J's injuries and, if so, to allocate the proceedings and the hearings as he thinks fit."

Mark Smulian