Re W (A child)



Judge: (Court of Appeal) (Sir James Munby P, McFarlane and Clarke LJJ)

Citation: [2016] EWCA Civ 1140

Summary

The central issue in this appeal, of relevance by analogy to proceedings before the Court of Protection was this:

Can 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, challenge the judge’s findings on appeal?

If so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?

This shortly stated issue gave rise to a number of procedural and substantive legal issues, described by Lord Justice McFarlane (who gave the sole judgment) as a series of landmines, the detonation of any one of which would be likely to prevent the appellants from reaching their goal.

The issue arose as part of care proceedings in which there had been a fact finding by a judge as to whether a child (C) had been sexually abuse by members of her family. The judge found that there had not been any sexual abuse. That conclusion was not challenged on appeal. The judge also made subsidiary findings that a social worker (SW) and a 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 in the other professionals. 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. In addition to the specific adverse findings made against the local authority, SW and PO also complained that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, would be made public. The judge proposed to name SW and PO in the judgment.

The local authority, SW and PO sought to appeal in order to have certain parts of the judgment excised before it was made public. The argument they made was procedural – they stated that the first time they had known that the judge was going to make such serious findings about their conduct was when he gave an oral bullet point judgment and that they had not been given any opportunity to address the issues during the hearing. McFarlane LJ notes that on review of the transcripts of the hearing it was apparent that the cross-examination of SW and PO had not raised any of the issues which the judge later included in his judgment.

The main procedural and substantive legal hurdles were:

  • Were SW and PO entitled to appeal against the judgment at all, not being original ‘parties’ and not seeking to appeal the central ‘decision of the court’ (namely the finding that there had not been any sexual abuse)? (See section 31K of the Matrimonial and Family Proceedings Act 1984)?
  • If they were able to appeal, were SW and PO afforded the protection of Article 8 in these circumstances and if so were those rights breached by the lower court?
  • Was the local authority (which as a body corporate was not entitled to rely on Article 8) entitled to argue that the lower court had breached Article 6?
  • What remedy applied if the relevant breaches were made out?

Parties?

The judgment sets out a detailed analysis of the definitions of a party and an intervenor which are not replicated here. SW and PO were witnesses at the fact finding but once the judge’s adverse findings were made as part of the oral bullet point judgment, they sought and were granted the chance to be represented and make submissions. It was argued on their behalf that this gave them the status of parties or intervenors.

The Court of Appeal held that on the facts of this case both SW and PO achieved “intervenor” status, and were therefore additional ‘parties’ to the proceedings relating to the terms of the judgment.

It was further held that due to the clear ruling of the Court of Appeal in MA Holdings Ltd [2008] EWCA Civ 12, it was unnecessary to establish with certainty the precise procedural status of SW and PO in the lower court in order to determine whether or not they could act as “appellants” in the Court of Appeal.

Finally where it was established that an individual’s rights under ECHR, Art 8 had been breached by the outcome of the proceedings in the lower court, then the Court of Appeal had a duty under s.3 HRA 1998 to afford that individual a right of appeal.

A decision/determination/order/judgment?

The appellants were seeking to challenge subsidiary internal findings of the judge and not any order made, which on its face would serve as a bar to any appeal (appeals normally lying against an order).

The judgment analyses this issue in detail, considering the case of Cie Noga SA v Australia and New Zealand Banking Group [2002] EWCA Civ 1142; [2003] 1 WLR 307 (the leading authority on the distinction to be drawn between those aspects of a lower court’s conclusions which are properly susceptible to appeal, and those which are not).  The Court of Appeal concluded that as the ECHR was not engaged on the facts of Cie Noga it was not necessary to follow the approach of the court in that case.

The Court of Appeal concluded that the judge’s findings themselves were a ‘judicial act’ which, on the facts of the case, were capable of being held to be ‘unlawful’ under HRA 1998, s 7(1) and therefore the proper subject of an appeal, without having to consider whether or not they were a ‘decision’, ‘determination’, ‘order’ or ‘judgment’.

Did SW and PO enjoy protection with respect to Art 8 private life rights and were those rights breached?

McFarlane LJ’s answers were “yes and yes.” The judgment contains a detailed consideration of the scope of Article 8 and makes clear that it encompasses an individual’s right to engage in a particular profession. The case provides a summary as follows:

  1. In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);
  2. Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);
  3. The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);
  4. At its core, fairness 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 (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));
  5. On the facts of this case protection under Art 8 did extend to the ‘private life’ of both SW and PO (see the full facts of the case but with relevant facts in particular being that SW had been suspended and it would impact on PO’s ability to give evidence and be involved in similar matters)
  6. The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

Useful guidance was given to judges conducting cases where adverse findings were likely to be made:

  1. Ensure 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;
  2. Prior to the case being put in cross-examination, provide disclosure of relevant court documents or other material to the witness and allow sufficient time for the witness to reflect on the material;
  3. Investigate 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 the present case, once the judge had formed the view that significant adverse findings might 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. One option at that stage, of course, was for the judge to draw back from making the extraneous findings. But if, after due consideration, it remained a real possibility that adverse findings may be made, then the judge should have established a process that met the requirements listed above.

Local authority: breach of fair trial rights

Given the firm and clear view that the court took as to the degree to which the process adopted fell short of the standard of fairness to which those affected were entitled, it was unnecessary to do more than record that the same conclusion, in the context of Art 6 and the common law, must apply with respect to the adverse findings made against the local authority which had not been canvassed during the hearing and were outside the issues in the case.

Remedy

It was incumbent on the court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that had occurred. In the present case what was sought was the removal from the judgment of any reference to the matters that were found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing.

McFarlane LJ held that those sections should be removed and further noted:

So that there is no ambiguity as to words such as ‘removal’ or ‘redaction’ in this context, I make it plain that the effect of any change in the content of the judge’s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge”.

Comment

The facts of this case were extreme and McFarlane LJ was keen to emphasise that it should not lead to any ‘defensive judging’. The family court and the COP often have to scrutinise carefully the conduct of professionals as part of deciding a case and as long as that is undertaken fairly there is no issue. In this case it appears that neither in cross examination by the family’s representative nor in questioning by the judge were the social worker, the police officer or the local authority alerted to the highly damaging conclusions which the judge then set out in his ‘bullet point’ judgment.

The case is also an interesting source of detailed analysis on the nature of parties/intervenors and what can be the subject of an appeal – where a person’s human rights are engaged or a fair trial is at stake, an appeal can be made outside the narrow interpretation of an order/decision or determination.

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