Family Law

Clarification of a court judgment

• Pleading a care application threshold statement;
• The common law special measures which may be available for evidence from a ‘child’ – as she was at the time of the hearing – who is as disturbed as was T;
• Children Act 1989 s 20 (T was accommodated by the local authority having already been adopted) for nearly two years;
• European Convention 1950 Arts 6.1 (for all individuals involved) and 6.3 (perhaps, for the father; as will be explained).

Background

‘[7] … The reason for [T’s] her removal [in August 2014] was that on that day T made allegations that “my dad sexually abuses me” to a mental health practitioner from the local CAMHS team who had been her key worker for some time. In the course of her discussion with the CAMHS worker on that day T gave more detail of her allegations both orally and in short written notes.
[8] As a result, T was removed from the family home. She underwent an Achieving Best Evidence ("ABE") interview on 9 September 2014. The interview was of significance in the sense that T again made allegations of sexual abuse against her father both orally and by writing notes on paper provided for her during the interview.
[9] Some months later, in March 2015, T made further allegations which were, after referral to the police, repeated to a police officer. She declined, however, to undergo a second ABE interview. On the next day, in conversation with her then social worker, T purported to retract, initially fully and then partially, her sexual abuse allegations.
[10] … These encounters had been limited to lifting of clothing and inappropriate touching, she asserted that on at least one occasion the father had attempted to penetrate her vagina with his penis.’

‘[13] … That it sought within the care proceedings. These were limited to the allegations made by T on 27 August and in the ABE interview on 9 September. They were limited in time to the period between the end of May and 25 August 2014 and set out five short specific descriptions of the type of abusive behaviour alleged. It was pleaded that the father had behaved in this way “twice a week most weeks” throughout the 12-week period. The Schedule also included criticism of the mother's response which was, it was said, to say to T “I don't believe you” and her failure to take protective measures prior to T’s removal from the family home.’

‘[27] Unfortunately, the Judge’s decision [is not recorded] on any of the five specific findings of sexually abusive behaviour alleged in the local authority Schedule save that, at paragraph 71, the Judge stated “I also find that the description T gives of her father attempting to penetrate her is wholly believable”.’

Judge’s judgment and the appeal

‘[24] … Given the string of requests over the course of over six months that had been made by the parties and by the Court of Appeal for the Judge's detailed response, the failure to distribute the approved version, or even alert those concerned to the fact that it had been sent to the transcribers, is surprising.’

Appeal by parents

‘[30] Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge's clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming.’

Delay

Clarification of judgment

‘(2) The appellant must file the appellant’s notice at the appeal court within—
(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or
(b) where the court makes no such direction,… 21 days after the date of the decision of the lower court which the appellant wishes to appeal.’

‘[45] … The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.’
Transcripts may not be available in the 21 days; so that though a transcript is preferable from the court’s point of view, even then – as in pre-transcript days:
‘[43] … the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment.’

Clarification and English v Emery Reimbold & Strick Ltd

‘[45] After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification.’

‘[25] Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons,… If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.’

Conclusion

1. If in any doubt, draft a notice of appeal – albeit in outline and from your advocate’s note.
2. If that notice criticises the judge for lack of reasons, file application for permission to appeal with the judge (r 52.3(2)(a)) (English v Emery Reimbold & Strick Ltd).
3. If in doubt as to filing notice of appeal in 21 days, ask the judge (r 52.12(2)(a)) to extend time to 21 days from (eg his/her reply on clarification).
4. If judge delays in reply, file 21 days from date of decision of court below (r 52.12(2)(b)); again even if grounds are in draft. The Court of Appeal can be asked (i) to amend grounds and (ii) to extend time for filing documents and eg skeleton argument till clarification, or save as further directed by the court.