Court of Appeal finds deficient reasoning from Family Court judge when making findings of fact
The Court of Appeal has set aside a family court judgment, after finding an “absence of recorded analysis” in the oral judgment that was delivered in only an hour.
In T & Ors (Children : Adequacy of Reasons) [2023] EWCA Civ 757 , Lord Justice Baker concluded that: “Although the judgment in this case does contain some reasoning […] The deficiencies are on a scale which cannot fairly be remedied by a request for clarification. Where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis.”
Outlining the background to the case, the Court of Appeal judge said that the two appeals had been brought by a 19-year-old man (S), and his mother against the judge's decision dated 21 March 2023, by which he made findings of fact against them.
The findings came within care proceedings brought by the local authority in respect of S's younger siblings: T, a 16-year-old girl; U, a 14-year-old girl; V, a ten-year-old girl; and W, a five-year-old boy.
Lord Justice Baker noted that the family had been known to the local authority for 15 years. He said: “There have been lengthy difficulties with housing, money and immigration status which have had an effect on the mother's ability to care for the children.”
Between July 2017 and March 2018, the children were the subject of child protection plans under the category of emotional harm.
On 5th February 2021, police officers were called to the family home by S as a result of an incident involving T. While they were there, T made allegations that her brother had sexually abused her on occasions when she was aged 11 and 12. She further alleged that her mother had known about the abuse and done nothing to protect her, said Lord Justice Baker.
T was interviewed under the ABE procedure, where she repeated her allegations.
S was interviewed and denied the allegations. The mother also denied knowing or being told about the allegations. Lord Justice Baker said: “She [the mother] raised concerns about T's behaviour and the young persons with whom she was associating at school which had led to a deterioration in her behaviour and use of illegal substances”.
Lord Justice Baker noted that T had been the subject of an interim care order since the beginning of the proceedings. He said: “At several points during the proceedings, T retracted the allegations against S and her mother, then repeated them, then retracted them again. All professionals accept that her presentation is very complex and extremely worrying.”
On 19 July 2021, S was joined as an intervenor to the proceedings. His lawyers applied for T to give evidence at the fact-finding hearing. After a Re W hearing on 19 November 2021, the judge came to the conclusion that T would not give evidence, said the Court of Appeal judge.
The findings sought by the local authority were set out under the following headings:
1: When T was aged around 11 to 12, S sexually abused her by anally raping her on 20 occasions and on one occasion taking a photograph of her with one of her breasts exposed.
2A: T informed her mother that S had abused her. The mother told her not to tell anyone. Mother failed to protect T and is unable to protect the children from sexual harm from S.
3: The mother had influenced or sought to influence T to conceal or withdraw her allegations about S.
4: On 5 February 2021, the mother hit and kicked S, pulled her hair and choked her.
5: During December 2020, the mother grabbed T's hair and S hit, grabbed and punched her.
5A: At times there were heated arguments between T and the mother. These escalated into physical altercations and necessitated the police being called. On those occasions, T was beyond the control of her parents.
5B: On 27 December 2020, S physically intervened in an argument between T and her mother and accepts restraining his sister.
Following a fact-finding hearing, the judge was asked to hand down a written judgment, “but declined to do so because of shortage of time”, said Lord Justice Baker. On 21 March 2023, the judge delivered an oral judgment in which he made substantially the findings sought by the local authority.
Analysing the judgment, Lord Justice Baker said: “At an early stage in the judgment, the judge explained what he was going to do in these terms:
This judgment can only last about an hour because I have another hearing. It cannot therefore go into every single detail of every single bit of evidence of the 12 days of hearing, otherwise we would be here for 12 days. If it needs to be expanded, it will be. But I am going to give much more of an overview than anything else.”
He added: “In paragraphs 18 to 40, the judge set out some but by no means all of the relevant history, focusing on T's allegations. […] The judge then made some observations about aspects of the evidence relating to T's alleged drug-taking, mixing with other young people, and exploitation.”
“The judge then concluded with his findings in these terms:
If I now return to the allegations, the first one, as I have said, is that, "When T was aged 11 or 12, S allegedly anally raped her, and took photographs".
I am aware that there is no physical evidence to show that this happened, the medical examination produced nothing, but I am satisfied that T is right in her allegations. I know that she made them, withdrew them, made them, withdrew them, and made them again, but I am satisfied that she was clear in what she said, and that she was telling the truth. I find allegation 1 proved.”
The judge concluded that he found the first two findings sought by the local authority to be proven. He said: “The remaining three are what I would call "yes, proven but there are matters to take into account".
On 9 May 2023, notices of appeal were filed on behalf of both S and the mother. On 7 June, permission to appeal was granted on both applications.
Turning to the appeal, Lord Justice Baker said the five consolidated grounds of appeal were:
1) Flawed approach and inadequate reasoning – the judge's reasoning and approach to the evidence were flawed and failed to meet the minimum standard of adequate reasoning, having regard to the seriousness of the allegation and the material before the court.
2) Failure to set out and apply key authorities – the judge failed to or did not properly set out and apply key authorities and guidance and in doing so was wrong to make findings against the appellants.
3) Factual errors and misunderstandings – the judge made numerous factual errors and misapprehensions and relied on them as the basis of his reasoning and in doing so was wrong to make findings against the appellants which are unsustainable in law.
4) Wrong decision that the evidence supported the findings against the mother – the judge erred in law and was wrong to find that the evidence supported the findings being made against the mother.
5) Procedural irregularity in giving judgment – the systemic impact of failing to prepare a written judgment and instead providing an ex tempore judgment in a very limited timeframe was highly adverse and amounted to a serious procedural irregularity.
He noted that the principle focus of the appeal was on ground 1, supplemented by ground 5.
On Ground 1, Lord Justice Baker said: “It is asserted in particular that the judge failed properly to set out the evidence, or adequately analyse key features of the evidence, or record each party's key case on the issues, or give a proper explanation for his findings.”
He added: “A number of crucial omissions from the judgment have been identified. The summary of background facts is incomplete – in particular there is no reference to the history of the family's involvement with children's services.
“The judgment does not identify the witnesses who gave oral evidence, let alone summarise what they said. It is therefore impossible to determine what weight has been given to any particular part of the evidence or how the findings have been made.”
“There is no reference to the lengthy submissions prepared on behalf of the appellants, save a statement early in the judgment that the judge had read them, nor to the core issues as identified by counsel.”
Lord Justice Baker noted that on behalf of S, it was submitted that the judge “erroneously described his case as being a simple denial whereas his case was much more nuanced”. He accepted that something had happened to T but denied that he was the perpetrator.
On Ground 5, Lord Justice Baker said it is argued that the systemic impact of failing to prepare a written judgment and instead providing an ex-tempore judgment in a very limited timeframe was “highly adverse and amounted to a serious procedural irregularity”.
On behalf of the local authority and the guardian, it was submitted that it was “entirely normal” for a judge to deliver a judgment ex tempore even in complex cases, that the judge had little choice but to proceed in the way he did, that it was not a procedural irregularity, and that “any omissions can be tackled by a request for clarification”, said Lord Justice Baker.
Discussing the grounds, Lord Justice Baker began by saying he recognised that judges sitting in the family court face “enormous difficulties and challenges”.
He continued: “Plainly the judge was short of time on 21 March. But the course he took of delivering what he intended to be a relatively short overview judgment, with a view to the parties asking for further reasons if they so chose, is plainly irregular.
“[…] With respect to this experienced judge, he ought to have adopted the course suggested by the parties of handing down a written judgment. Cases of this length and complexity, in which serious findings are going to be made which will have a lifelong impact of members of the family, require a much more detailed analysis.”
He concluded that he agreed with the appellants' submissions that the omissions from the judgment were “extensive and significant”.
He added: “There was some analysis of the reliability of T's allegations, but given the omissions in the judgment it was inevitably incomplete. The analysis of the evidence was manifestly insufficient, with crucial aspects of it not mentioned at all, and the judge's explanation for his findings was perfunctory.”
Lord Justice Baker allowed the appeal on grounds one and five, setting aside the judgment and findings.
Briefly touching on the other grounds, he said: “As to ground 2, I would not be minded to allow an appeal on this ground standing alone. I am not persuaded that the way in which the judge identified and set out the legal principles gives rise to a ground of appeal. He failed to apply them in the ways set out in grounds 1 and 5 but ground 2 does not add to that argument. Grounds 3 and 4 involve an analysis of the evidence. Subject to what is said below, there may have to be a rehearing of all or some of the allegations. In those circumstances, it would be better to refrain in this Court from commenting on the evidence to avoid inadvertently influencing the outcome of any rehearing.”
Considering what should happen next, Lord Justice Baker said: “I would propose that the proceedings be remitted to the Designated Family Judge for Central London to be listed for an urgent issues resolution hearing.
“I hope that all issues could be agreed without any need for a re-hearing which, as all parties agree, would be likely to cause further harm to this already very damaged family.”
Lady Justice Simler and Lord Justice Warby agreed.
Lottie Winson
