Zenith Family Current Awareness

Commentary on two interesting recent public law authorities: Re JS (Disposal of Body) [2016] and Re W (A Child) [2016]- Part 2

2 December 2016

Louise McCallum

In the second part of this blog I turn then to the case of Re W (A Child) [2016] EWCA Civ 1140, a case of more general applicability and relevance.  The central issue in this appeal was whether a witness in Family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, can challenge the judge's findings on appeal?  Further, if so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?

Lord Justice McFarlane gave the leading judgment, described by the President of the Family Division as “magisterial”. An unnamed circuit judge, sitting as a Deputy High Court judge had given judgment followed a fact-finding hearing in relation to allegations of sexual abuse.  The judge found that none of the allegations made by an older sibling 'C' were proved.  No party sought to appeal this conclusion.

The appeal arose from the fact that, in coming to his conclusion, the Judge had made the most serious of criticism against a number of professionals. The Judge found that the social worker ‘SW’ and police officer ‘PO’, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her.

The Court of Appeal gave permission to appeal to the local authority, the named social worker ("SW") and the named police officer ("PO"). The appellants sought that the passages complained of be excised from the judgment.

The focus of the appeal was on process.  The central point raised by each of the three appellants, and ultimately accepted by the Court of Appeal, was that highly adverse findings "came out of the blue" for the first time in the Judge’s initial bullet point judgment.  The adverse findings made did not feature at all in the way any of the parties had presented their case and were not raised by the judge during the hearing.  As a consequence none of the three had been given the opportunity to know of or meet the allegations during the trial.  These submissions were later accepted by McFarlane LJ. 

Following the "bullet point" judgment, the appellants were given the right to be represented and/or make representations to the Court.  The judge heard detailed submissions on behalf of the appellants leading to him excising some of the intended content.  Following an amended draft judgment (in which many adverse findings remained) the court heard submissions as to the issues of identification of professional witnesses and anonymisation of the judgment.  There was then a reserved judgment in which the judge ruled that some professionals would be anonymous, but that SW and PO would be named in the public version of the judgment.  McFarlane LJ did not accept that the hearing of submissions following the bullet point judgment had redressed the fairness: such a process would have had to have happened prior to the Judge reaching his conclusions.

Unsurprisingly the appellants were concerned that the findings had the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO.  As part of the initial bullet point judgment, the judge directed that the local authority that was by then employing SW must be alerted to the findings as a matter of urgency. The SW was at the time of the appeal suspended.

The route by which the appellants could seek remedy from the Court of Appeal was complex.  McFarlane J said colourfully that was a “route which is strewn with substantive and procedural legal landmines, the detonation of any one of which is likely to prevent the appellants reaching their goal.” 

Ultimately they were however indeed successful in navigating each landmine.

The Court of Appeal found that the SW and PO did a right of appeal.

McFarlane LJ concluded that it was clear that both SW and PO achieved "intervenor" status, and were additional 'parties' to the proceedings with respect to the stage of the proceedings relating to the terms of the judgment and therefore (together with the Local Authority) had a right of appeal.  Indeed by another legal route an appeal might have been entertained even had they not been a party/intervener where it was established that their Art 8 rights had been breached by the outcome of the proceedings in the lower court.

The SW and PO enjoyed protection with respect to Art 8 private life rights.

An essential factor for procedural fairness was that the party/witness to be the subject of a level of criticism (sufficient to trigger protection under Art 8 or Art 6) should be given proper notice of the case against them.  In Re W the very substantial and professionally damning criticisms had surfaced for the first time in the bullet-point judgment.  The private life rights of SW and PO under Art 8 would be breached if the judgment, insofar as it makes direct criticism of them, was allowed to stand in the final form as proposed by the judge.  The right to respect for private life, as established by Art 8, could extend to the professional lives of SW and PO.  Fairness under Art 8 and in common law requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision

It was a fundamental and extreme example of 'the case', as found by the judge, not being 'put' to SW and PO.

So too the principle applied to the Local Authority under Art 6 and common law with respect to the adverse findings made against the local authority, not earlier canvassed.

McFarlane LJ regarded the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances.

The adverse findings were susceptible to an appeal

There was considerable technical legal argument as to whether an appeal was possible when the only target of the appeal related to subsidiary internal findings of the judge and not any specific order that he made.  There was discussion about the implications  of the leading authority Cie Noga SA v Australia and New Zealand Banking Group [2002] EWCA Civ 1142 and also Re M (Children) (Judge's findings of fact: jurisdiction to appeal) [2013] EWCA Civ 1170.  The combined effect of these was a "formidable hurdle".

There was however a way through: McFarlane LJ observed that he had, unfortunately, concluded that the High Court had acted in a way which was in breach of the Convention rights of PO, SW and the local authority to a fair trial in relation to the adverse findings that were made against them. The judge's findings themselves were a 'judicial act' which, on the facts of this case, was capable of being held to be 'unlawful' under HRA 1998, s 7(1) and therefore the proper subject of an appeal.  It was not necessary to consider whether or not it was a 'decision', 'determination', 'order' or 'judgment'.

Remedy on appeal

The remedy redaction of the offending parts of the judgment.  McFarlane LJ made it plain that the effect of any change in the content of the judge's judgment was not simply to remove words from a judgment that is to be published but to set aside the judge's findings on those matters so that those findings no longer stand or have any validity for any purpose. It would be as if the findings had never been made.

Implications of the decision

McFarlane LJ was troubled that the decision could be, wrongly, viewed as having wider implications as to how judges should approach making findings.  He considered that circumstances in Re W were extreme  and likely rare. He detected no need whatsoever for there to be a change in the overall approach that is taken by judges.  McFarlane LJ emphasised that his judgment was certainly not a call for the development of 'defensive judging'; judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.

What should the judge have done?

McFarlane LJ offered [para 95] observations in answer to this rhetorical question:

“95. Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

a) Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence;

b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.”

In Re W once the judge came to form the view that significant adverse findings may well be made and that these were outside the case as it had been put to the witnesses, he should have alerted the parties to the situation and canvassed submissions on the appropriate way to proceed.

Criticism of Expert witnesses

Again troubled by the decision being misinterpreted as having wider implications, McFarlane LJ considered the situation where a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case. He considered that although what he had said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it would be very rare that such a witness' fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such as legal advice or representation during the hearing.

The expert witness should normally have had full disclosure of all relevant documents. If criticism is to be made, it is likely that the critical matters will have been fully canvassed by one or more of the parties in cross examination.

McFarlane stated at para 101:

“I have raised the question of expert witnesses at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to witnesses in general, and expert witnesses in particular.”

Conclusion

So in essence the clear message of the Court of Appeal is that judges should not generally alter their approach and certainly should not adopt a defensive position in relation to findings. 

However, most practitioners will have in mind cases in which significant criticism is levied against a professional within care proceedings.  I can certainly recall two cases in my career in which allegations have been made against social workers which if found proven by the Court were of career ruinous quality. In future cases of this type it will be important that the factors set out within paragraph 95 of McFarlane LJ’s judgment be kept close in mind.

Current Awareness

By the Family team