Court of Appeal judge admits concern at “tortuous” process following fact-finding hearing in care proceedings but dismisses appeal

A Court of Appeal judge has dismissed a mother's appeal in care proceedings, despite expressing a number of concerns “about the prolonged and tortuous process that followed the fact-finding hearing”.

The case of C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38 involved a large family. The father had nine children, four with his first wife, and five with his second wife ("the mother"). The family has been known to social services for a number of years.

The care proceedings arose out of events in May 2021 when the mother telephoned the NHS 111 number and reported that one of the children (H), then aged 10 months, had a "big lump" on his head.

The fact-finding hearing began in March 2022. However, the judge only handed down the final version of the fact-finding judgment, accompanied by seven annexes, in August 2022. She found that H had been subjected to significant physical harm and all the children in the family were likely to suffer significant physical and/or emotional harm.

The mother filed two notices of appeal, both in substantially the same terms, in which she asked the Court to set aside the findings and the determinations that the s.31 threshold had been crossed and either substitute a finding that the local authority had failed to establish the threshold was crossed with respect to any of the children or alternatively remit the matter for rehearing.

Lord Justice Baker granted permission to appeal on 30 November and the hearing of the appeal took place on 20 December.

In preliminary observations the Court of Appeal judge said: “Any case involving a large number of children and a history stretching back over several years presents challenges to the court, and the judge plainly approached her task with commendable diligence and determination.”

But Lord Justice Baker expressed concern about the conduct of the proceedings, describing the process that followed the fact-finding hearing as “prolonged and tortuous”.

He said: “I recognise the problems which hard-pressed judges sitting in the family court are facing week in, week out. I am, however, concerned that what happened in this case may reflect practices which are becoming more common in care proceedings, partly as a result of the increased complexity of the cases and the wider pressures on the family justice system, but also because of a blurring of the boundaries which have traditionally marked up the field of litigation delineating what might be called the ‘technical areas’ of the judge and the advocate”.”

He outlined his concerns as follows:

38. First, there was an inordinate delay before the production of the final version of the judgment. It was handed down over 18 weeks after the end of the hearing and 10 weeks after the circulation of the preliminary draft. In the intervening weeks, there were no fewer than six interim orders (or draft orders) dealing with matters relating to the production of the judgment and its annexes and prolonged exchanges of emails between the court and the legal representatives. One consequence of this confusing process was uncertainty as to whether the time for filing a notice of appeal to this Court was about to expire. A further consequence was that there were three separate and in some respects different accounts of the judge's key reasoning (the main judgment, the clarifications document and the "findings" document). Another related problem is that each of the first two documents came in more than one version. But the main concern, of course, was the delay in making decisions about the future welfare of subject children.

39. Secondly, it is to my mind inappropriate for a judgment in care proceedings to be accompanied by as many as seven annexes. I recognise that this was a complex case and that the judge wanted to consolidate all the documents. A judgment structured in that way, however, presents difficulties for any later reader seeking to identify the reasoning behind the court's decision….

40. Generally, a draft judgment should be a single document that can simply be read from beginning to end. Annexes are sometimes appropriate but not on the scale adopted in this case. Whilst I can see the point of appending the findings made by the court (annex 6) and the response to the request for clarification (annex 1), I question whether it was either necessary or appropriate to append the other annexes. The two other judgments appended, giving reasons for the case management decision made on 16 February 2022 and for refusing permission to appeal on 9 August 2022, either pre-dated or post-dated the fact-finding decision and formed no part of the reasoning for that decision. Similarly, neither the local authority's revised threshold document nor its summary of evidence relating to Part B of the threshold formed any part of the judge's reasoning. As for the annex containing the mother's counsel's lengthy exposition of the law, there are clear dangers in such an approach, as explained by King LJ in Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 in which a similar note had been appended to a judgment in care proceedings. In fairness to the judge in the present case, I add that her judgment was handed down before the publication of the judgment in Re A.

41. Thirdly, the whole process of clarification and amplification was excessive. Some clarification was unquestionably necessary. With respect to the judge, the judgment, as she herself fairly recognised, did not set out some aspects of her sequence of reasoning with sufficient clarity. But whilst the judge was right to recognise the need to respond to requests for clarification or amplification of her reasoning, and entitled to incorporate some of her responses into the final version of her judgment, the document containing clarifications and amplifications appended as Annex 1 to the judgment was longer and more detailed than the circumstances required.

Lord Justice Baker said that, “to a very considerable extent”, the fault lay in the drafting of the requests for clarification or amplification by the parents' representatives. He outlined examples of these requests, and concluded that the degree of interrogation of the judgment seemed to be “manifestly excessive”. 

The Court of Appeal judge said the guidance on the process of making and responding to requests for clarification in family proceedings was set out in Re A and another (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205 ("the Practice Note"), Re I (Children) [2019] EWCA Civ 898 and most recently Re F and G (Children) (Sexual Abuse Allegations) [2022] EWCA Civ 1002.

Lord Justice Baker said: “It is the responsibility of counsel and courts to be disciplined when making and responding to requests for clarification.”

He added: “In at least one respect,….the request for clarification was undoubtedly justified. But overall the requests drafted on behalf of the mother and father were excessive, repetitive and sometimes not easy to follow and in some respects these faults were mirrored in the judge's responses”.  

Turning to each of the grounds of appeal, Lord Justice Baker said: “Despite my concerns about the process leading to the final production of the judgment and its seven annexes, and about the clarity of those documents, I have ultimately concluded that the judge was not wrong to reach the findings set out in Annex 6 and that her reasoning is clearly discernible from the judgment documents. Although it could be said that the concerns raised above amounted to irregularities in the process, they did not result in any injustice to the parties. I would therefore dismiss the appeal.”

Lord Justice Warby and Lady Justice Whipple both agreed that the appeal should be dismissed.

Lord Justice Warby said: “I share the disquiet which Baker LJ has expressed about a judgment package of this scale and nature. I am sympathetic to the task confronted by judges dealing with cases of this kind. This judge worked hard over many days to produce a fair result.

“But the core material for our review is unduly voluminous. More problematic is the distribution of judicial reasoning across several documents coupled with a lengthy and iterative gestation process.

“However, I also agree with my Lord that on a careful and fair analysis the final judgment, read as a whole, is not flawed in the ways complained of by the appellants. I therefore agree that the appeal should be dismissed for the reasons given by Baker LJ.”

Lady Justice Whipple said she shared Baker LJ’s concerns about some aspects of the approach adopted in the case, and she agreed with Lord Justice Warby's further observations. “But in the end, with careful analysis and the benefit of the submissions we have heard, the judge's reasons can be identified and I am satisfied that her conclusions on the facts were justified.”

Lottie Winson