“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY

We have seen many cases relating to issues arising following the sending out of draft judgments.  Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38 where the process of “interrogation” of a draft judgment, and the judicial response , were subject to some criticism.

“This degree of interrogation of the judgment seems to me to be manifestly excessive.”

THE CASE

The trial judge handed down a draft judgment in an complex childcare case.   The representatives for the children asked numerous questions by way of seeking “clarification”.  The judge responded and the judgment eventually contained seven annexes. The mother appealed.

THE PROCESS LEADING TO THE HANDING DOWN OF THE DRAFT JUDGMENT

The process leading to the judgment being handed down led to some confusion as to the date for appealing.

1. 1. On 30 June, the court circulated what was intended to be a perfected version of the judgment, accompanied by a document setting out clarifications and amplifications in response to the parties’ requests. The original draft judgment had anticipated that it would be accompanied by a note agreed between the parties recording the evidence about the Part B allegations. In the event, however, the parties had been unable to agree such a note. Email exchanges between the court and the parties’ representatives disclosed some uncertainty as to when the time for appealing would start to run. On 19 July, the judge made a further order reciting that the judgment would be formally handed down at a hearing on 26 July, directing that applications for permission to appeal should be submitted in writing to her by 25 July, and recording that the time for appealing started to run on 14 July. On 25 July, the mother, father and intervenor each filed an application in the lower court seeking permission to appeal. At the hearing on 26 July, the court indicated that both the formal handing down of the judgment and a decision on the applications for permission to appeal would be deferred to 29 July pending receipt of the local authority’s submissions in response to the applications. On 27 July, after the parties had been unable to agree the local authority’s draft note on the evidence relating to the Part B allegations, the mother’s representatives sent an email explaining why it was “not possible for the annex to be identified as a document which is agreed in every respect on behalf of every party”. On 29 July, the court issued a further order by email that the handing down of the judgment and of the decision on the applications for permission to appeal was adjourned to 1 August with the local authority submissions on the appeal application to be filed by 10am that day and the other parties’ responses by 2pm. On 1 August, the local authority asked for an extension of time for filing its response to the permission to appeal applications and the handing down of the judgment. On the same day, the court made a further order to the effect that the applications for permission would be determined without considering a response from the local authority and that the handing down of the judgment and decision on the permission to appeal applications would be adjourned again to 4 August.

1. 1. In the event, that date passed without the formal handing down of the judgment or the delivery of a decision on the permission to appeal applications. At that point, concerned that the time for appealing, which had been previously fixed as starting on 14 July, was about to expire, the mother filed a notice of appeal in the Court of Appeal. The Civil Appeals Office, however, declined to issue the notice on the grounds that no decision had yet been made by the lower court on the applications for permission to appeal.

THE COURT OF APPEAL’S CRITIQUE OF THE PROCESS OF “CLARIFICATION”

The judgment and findings

1. 1. On 10 August, the final version of the fact-finding judgment was handed down, accompanied by no fewer than seven annexes, consisting of:

• Annex 1, headed “Clarification/amplification” – this document, hereafter referred to as “the clarifications document”, was an amended version of the document setting out the court’s clarification of its judgment distributed on 30 June.

• Annex 2 – headed “Summary of the evidence before the Court regarding allegations in Part B of the threshold”. As noted above, this document was intended to be agreed between the parties but in the event consisted of a draft, running to 117 paragraphs, submitted by the local authority and not agreed by the respondents.

• Annex 3 – headed “Summary of general legal principles and their sources updated 24 Mach 2022”, a document extending to 14 single-spaced pages and 41 paragraphs, submitted by the mother’s legal representatives.

• Annex 4 – headed “Revised Threshold – Schedule of allegations which are asserted to satisfy the Threshold Criteria (revised 23 December 2021)”, drafted on behalf of the local authority.

• Annex 5 – “CMH Judgment” – the judgment following the case management hearing in February 2022.

• Annex 6 – headed “Allegations proved by the local authority”, consisting of a schedule of the findings prepared by the judge herself.

• Annex 7 – headed “Judgment on application for permission to appeal”, being the judgment on the three applications made by the mother, father and intervenor.

1. The schedule of findings in Annex 6 was a lengthy document containing a degree of repetition. It will be necessary to set out some of the findings in more detailed terms later in this judgment…

1. 1. In the event, for reasons that are not entirely clear but apparently tied up with the confusion about the time for appealing mentioned above, the mother filed two notices of appeal, both in substantially the same terms, in which she asked this 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.

1. 1. I granted permission to appeal on 30 November and the hearing of the appeal took place on 20 December. The parties represented at the hearing were the appellant mother, the respondent local authority, and the intervenor. The father’s representatives filed written submissions in support of the mother’s appeal. The children’s solicitor filed a statement indicating that the guardian did not oppose the appeal and adopted a neutral position as to the merits.

1. 1. Before considering the merits of the appeal, I have some preliminary observations to make about the conduct of the proceedings.

1. 1. 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. I have a number of concerns, however, about the prolonged and tortuous process that followed the fact-finding hearing. 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.

1. 1. 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.

1. 1. 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. In Re N-S [2017] EWCA Civ 1121, McFarlane LJ observed at paragraph 30:

“Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and other judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead.”

In that case, McFarlane LJ was dealing with a judgment in which the reasoning was said to be insufficient. But a similar criticism can be made where a judgment is structured and presented in a way that makes the reasoning difficult to discern.

1. 1. 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.

1. 1. 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.

1. 1. To a very considerable extent, the fault lies in the drafting of the requests for clarification or amplification by the parents’ representatives. For example, on behalf of the mother, a request was made in these terms:

“Please consider how, if the injuries may have been sustained whilst in the care of A or the father, what the court has concluded in respect of mother’s dishonesty.”

Another example was the following request made on behalf of the father:

“(a) What period or periods within the 24-hour window does the court identify as ones when the child was in the care of the father?

(b) In terms of that period, or those periods, when does the court identify that the father could have inflicted the skull fracture, or could the skull fracture have occurred accidentally in the father’s care?

(c) Does the court accept the uncontroverted evidence that the father was in work during the hours he stated?

(d) Does the court accept the uncontroverted evidence that the father was out with friends during the evening on Friday, 7 May 2021?

(e) In placing the father within a pool of possible perpetrators for this skull fracture, how does the court say the local authority has discharged its burden of proving on the evidence that there is a real possibility that he inflicted the injury?

(f) In which possible circumstances and at which possible times?”

1. 1. This degree of interrogation of the judgment seems to me to be manifestly excessive. The guidance on the process of making and responding to requests for clarification in family proceedings is 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. As I observed in the last-named case:

“When giving judgment in a complex children’s case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as the Practice Note emphasised, ‘to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process.'”

It is the responsibility of counsel and courts to be disciplined when making and responding to requests for clarification. As King LJ observed in Re I (at paragraph 38):

“The family court is overwhelmed with care cases. Judges at all levels often move seamlessly from one trial to the next without judgment writing time between them. Routine requests for clarification running to a number of pages are not only ordinarily inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit the evidence and their judgment when their thoughts and concerns have long since moved onto other cases. This is not conducive to the interests of justice.”

In at least one respect, as discussed below, 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.