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13 APR 2018

Appeals and clarification of a judge’s reasons: Re P (A Child)

David Burrows

Solicitor Advocate

@dbfamilylaw

Appeals and clarification of a judge’s reasons: Re P (A Child)

Clarification of a court judgment

The recent Court of Appeal decision of Re P (A Child) [2018] EWCA Civ 720 (11 April 2018) concerned T (born we are told ‘in 2000’: ie she is 17 or over, see the Children Act 1989, s 31(3) below) and her younger sister, X. The case operates on a number of levels. The main issue for the Court of Appeal was the judge’s failure to provide a clear and prompt judgment to explain her original determination (communicated in abbreviated form, as explained below); and then to fail to provide the parties with clarification of reasons for her judgment as permissibly requested by them.

The case also raises issues in relation to:
  • 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).
These issues will be the subject a separate post.

Re P is a public law children case, and an appeal to the Court of Appeal; but the points which arose on clarification of reasons in a judgment and difficulties which may arise if clarification is not promptly provided by a judge apply equally to other civil proceedings (English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 3 All ER 385 (below)). In the case of family proceedings and appeals under FPR 2010, Pt 30 the same principles and McFarlane LJ’s guidance apply to appeals there as well. For example CPR 1998 r 52.12(2) (see later: time limits on appeals) is in the same terms as FPR 2010 r 30.4(2) for High Court appeals in family proceedings. Article continues below...
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Background

T (then aged 6) was placed, with her younger sister, with adoptive parents under orders dated October 2008. In September 2014 she alleged sexual abuse by her adoptive father. He denied this and was supported by his wife (ie T’s and X’s adoptive mother). T’s allegations were summarised by McFarlane LJ at [7]-[10]:

‘[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.’
The local authority’s pleaded threshold case was:

‘[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.’
Of this case McFarlane LJ summarised the judge’s findings – if they were that; he was not satisfied that they really were findings – as:

‘[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

Oral evidence in the case concluded on 18 November 2016 and over two days’ submissions concluded on 25 November. 8 December 2016 was fixed for delivery of judgment, but the judge could not deal with it then. She expressed ‘some conclusions’ and then announced her conclusion that ‘during 2014, there was an attempt at least… of sexual congress’ ([17]) by the father on T. 30 January 2017 was fixed for a full judgment when from prepared notes the judge gave a judgment.

A request for clarification was put to the judge (English v Emery Reimbold & Strick Ltd (see [25] below)); and a full typed transcript was available by 12 March 2017. By a year later – the date of hearing of the appeal – a final version of the judgment had not been received by the parties; though an ‘approved version’ seems to have been sent by the judge the previous September 2017 to the transcription company though an approved version seems not to have been sent by the judge or her clerk to the parties or the Court of Appeal ([24]). McFarlane LJ summarises the position with remarkable judicial restraint:

‘[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

The father and the mother each appealed by notices in August 2017. Though the parties first returned before the judge for her review of her ‘conclusions’ on 8 December 2016 the Court of Appeal judgment does not make it clear exactly what was the date of the care order appealled against. The parties were before the judge again on 30 January 2017 when she gave her judgment and may have made a final order then.

Any delay in filing the appeal notice (final appeal submissions, November 2016: appellant’s notice, August 2017) was explained by McFarlane LJ thus:

‘[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.’
McFarlane LJ’s summary of the basis for the appeal was that the judgment failed to identify what – if any – findings of fact the judge made ([28]). All parties agreed that the appeal should be allowed. This state of affairs, generally, said the judge, was as regrettable as it was untenable ([33]). 

Delay

The delay in dealing with the appeal is explained by McFarlane LJ (see citation of [30] above). The old rule – whatever the Legal Aid Agency might say about the parents’ appeal – is that an appeal is against an order not a judgment. In the wording of CPR 1998 r 52.3(1), permission is required where the appeal is ‘from the decision… of a High Court’ judge (as here). In the first instance permission is required of the judge. There are probably good reasons why permission was not requested on 8 December 2016; but it is likely that any care order – and therefore parental responsibility being vested in the local authority – ran from that date.

Drafting grounds of appeal might have been a little impressionistic at that stage – but it was how grounds were always drafted before the days of full transcription of judgments. Even now most grounds of appeal in the 21-day period for appeal must be drafted from an appellant advocates’ notes.

Clarification of judgment

McFarlane LJ concluded the main part of his judgment by offering guidance to meet what had happened in this case. First however it is worth recalling that the rule with its time limits is at CPR 1998 r 52.12(2). This says that appellants need permission to appeal in most cases; and that this should be made as follows:

‘(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.’

The judge’s guidance ended with the helpful reminder: that if English v Emery Reimbold & Strick Ltd clarification from a judge was delayed, the advantage of a notice of appeal being filed promptly and in time is that if there are delays the Court of Appeal itself can weigh in to get delayed clarification moving:

‘[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.’
Advocates should therefore always take a full note, ‘[43] … so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed;’ and it is plainly important for advice of clients and to obtain extensions of any legal aid certificate. That said ‘[44] … it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal’ subject to what is said at the start of this section.

Clarification and English v Emery Reimbold & Strick Ltd

However, clarification must not cause ‘time to run on without a notice of appeal being issued’ ([45]); but what is a reasonable time to permit for clarification? This will vary; but should rarely be more than 4 weeks from any request for clarification.

‘[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.’
The approach of filing a notice of appeal sooner rather than later, and what McFarlane LJ says in the last citation, is consonant with what was actually said by the earlier Court of Appeal in English v Emery Reimbold & Strick Ltd:

‘[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

If I were asked to say how a procedure should run after Re P where clarification of reasons is delayed and in the light of the guidance of McFarlane LJ, I would say:
  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.
I would always be very wary of that 21-day time limit (as I am sure my insurers would prefer); and would make sure my opinion on merits for the LAA emphasised that it was based on what I knew (eg my own notes of the judgment) alongside any decision already made by the court below. It is just not worth missing that 21-day time limit under r 52.12(2) and finding that permission is refused because an appeal is out of time.
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