(Court of Appeal, Sir James Munby, the President of the Family Division, McFarlane, Christopher Clarke LJJ, 17 November 2016)
Practice and procedure – Witness – Adverse findings against professionals – Whether procedure was fair – Whether the professionals had a right of appeal – Whether those findings should be set aside
The appeal from findings made against professionals in care proceedings was allowed and the relevant parts of the judgment were set aside.
The issue for determination was: 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 Art 8 of the European Convention challenge the judge's findings on appeal? If so, on what basis and, if a breach of Art 8 is found, what is the appropriate remedy?
In care proceedings a fact-finding hearing took place in relation to allegations of sexual abuse by an older sibling. That sibling himself also made allegations against adult males. None of the allegations were found proved and the judge was critical of a range of professionals involved including a social worker and a police officer. In particular he found that they 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 both individuals had lied to the court with respect to an important aspect of the child sexual abuse investigation.
The local authority, the named social worker and the named police officer all sought to appeal and for the relevant passages of the judgment to be removed.
Since the social worker and police officer had been invited to make submissions following the circulation of the draft judgment they had clearly gained intervenor status and as such were parties to the proceedings for the purposes of FPR 12.3(3),(4). They, therefore, had a right of appeal.
In this case once the judge formed the view that significant adverse findings might be made against the professionals and that they 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. If the judgment was no allowed to stand including the adverse findings against the named professionals their Art 8, European Convention rights would be breached, irrespective of whether the judgment was published since the need to inform employers or prospective employers applied regardless of publication.
The process adopted by the judge fell far short of the wide margin of that which fairness required in the circumstances of this case.
While the local authority could not rely on the rights enshrined by Art 8 of the European Convention it was entitled to the benefit of the right to a fair trial under Art 6. Therefore, the same conclusion could be reached with regard to the criticisms below of the local authority.
In this instance the judge's findings themselves were a 'judicial act' which was capable of being held to be unlawful under s 7(1) of the HRA 1998 and therefore the proper subject of an appeal, without having to consider whether or not it was a 'decision', 'determination', 'order' or 'judgment'.
The appeal was allowed. The relevant parts of the judgment would be removed and those findings set aside.