K-L (Children), Re

B e f o r e :

LORD JUSTICE JACKSON LORD JUSTICE RYDER LORD JUSTICE BEAN ____________________

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DAR Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)

Mr K Rowley QC and Ms L Harrison (instructed by Quality Solicitors Jackson Canter) appeared on behalf of the Appellant Ms Joanna Mallon (instructed by Liverpool City Council) appeared for the local authority. Mr Simon Heaney, solicitor advocate, of Heaney Watson Solicitors appeared for the father. Mr Andrew Haggis (instructed by Morecrofts Solicitors) appeared for the children. ____________________

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LORD JUSTICE JACKSON:

This judgment is in four parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The appeal to the Court of Appeal,

Part 4. Decision.

Part 1. Introduction

This is an appeal by a mother against the decision reached at the end of a fact-finding hearing in proceedings under the Children Act 1989, to which I shall refer as "the Children Act".

There is some doubt as to what, if any, is the effective decision under appeal. The first instance judge gave three different and inconsistent judgments. There is no order giving effect to the judgment about which the appellant now seeks to complain. Assuming that hurdle can be overcome, the next issue is whether any of the judgments below can stand in view of the judge's change of mind about a central issue.

The children subject to these proceedings are four boys, namely, P aged 10 years, T aged 7 years, K aged 22 months and L aged 12 months. The mother, who is appealing, is the mother of all four boys. The father, who is one of the respondents, is the father of the younger two boys. He has treated the elder two boys as if they were his children.

The other two parties in these proceedings are the local authority, which was the applicant in the court below, and the children's guardian. Both the local authority and the guardian are respondents in this court.

After those introductory remarks, I must now turn to the facts.

Part 2. The facts

There have been serious concerns about the welfare of all four children who are the subject of these proceedings. On 30 October 2014 the local authority commenced care proceedings in the Liverpool Family Court. Accordingly, the statutory 26 week period for the conclusion of proceedings ended on 30 April 2015. The proceedings were allocated to Her Honour Judge Lyon to whom I shall refer as "the judge".

The local authority relied upon a number of matters in order to establish that the threshold for making a care order, (as set out in section 31 of the Children Act), had been passed. One of those matters was that the father had sexually abused T. The local authority maintained that that sexual abuse was exemplified by inappropriate touching of T's penis. The other matters alleged by the local authority included physical abuse and domestic violence on the part of the father.

At a case management conference on 23 March 2015 the judge listed the case for final hearing on 21, 22, 23 April and 11, 12, 13, 14 May 2015. Paragraph 13(b) of the judge's order provided that "an exploration of the allegations of sexual abuse ought to form part of the composite final hearing".

An issue resolution hearing took place on 17 April 2015. On this occasion, it was agreed that the three days in April would be used to hear all relevant evidence relating to the allegations of physical abuse, sexual abuse and domestic violence. It was agreed that the parties would give their evidence relating to other issues during the second phase of the hearing which was listed for May.

The judge's order made on 17 April 2015 included the following provisions:

The order of 17 April also required the local authority to file and serve a schedule setting out a draft of the findings sought in support of the threshold criteria. This included the findings sought in relation to sexual abuse.

The local authority duly prepared and served a schedule setting out the findings which it sought. This was dated 21 April 2015. Paragraph 1 of the schedule dealt with the sexual abuse allegations. Paragraph 2 dealt with the allegations of physical abuse by the father against the two elder children. Paragraph 3 dealt with an alleged failure to protect on the part of the mother from the father's physical abuse. Paragraph 4 dealt with the failure on the part of the mother to seek medical attention for the children. Paragraph 5 dealt with a failure on behalf of the mother to prevent the children from witnessing scenes of domestic violence.

The hearing duly commenced on 21 April 2015. There were two days of evidence. That included the attendance of police officers who had interviewed the two elder children. At 9.30 am on the third day, which was 23 April 2015, the parties lodged their written closing submissions in respect of the factual issues. The court then adjourned so that the judge could prepare her judgment on the factual issues.

At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge's judgment was as follows:

The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

[Miss Mallon: Yes]

[Miss Mallon: Yes]

Following the hearing, the judge proceeded to work on her written judgment. The judge circulated this document on Friday, 8 May 2015. For clarity, I shall refer to the oral judgment which the judge delivered on 23 April as "judgment 1". I shall refer to the written judgment or draft written judgment which the judge circulated on Friday, 8 May as "judgment 2".

In judgment 2, the judge provided a somewhat discursive account of the course of the trial. She then set out her conclusions, which were that she rejected the allegations of sexual abuse by the father against T, but she accepted the allegations of physical abuse by the father against P and T. The judge went on to find that both parents had exposed the children to scenes of domestic violence, that the mother had failed to protect the children from suffering harm at the hands of the father and that the mother had failed to seek medical attention for P and T.

The judge attached as an appendix to judgment 2 the closing written submissions of the guardian, the mother and the local authority.

Upon receiving this judgment, Ms Leona Harrison, counsel for the mother, sent an e-mail to the judge asking why she had changed her decision in respect of the allegation of sexual abuse by the father. She also requested that the judge should address the various issues raised in her closing submissions on behalf of the mother.

The other important event which occurred on 8 May 2015 was that the judge was granted indefinite compassionate leave. Arrangements were made for a retired circuit judge, His Honour Judge Kevin Barnett, to attend court on 11 May in order to deal with the case sitting as a deputy circuit judge. I shall refer to him as "the deputy judge".

On the morning of Monday 11 May all parties attended court. A message reached the parties that the judge, although on leave, was in her room preparing a response to Ms Harrison's e-mail. In those circumstances, the deputy judge adjourned the hearing until the afternoon.

At 2.15 pm on the afternoon of Monday 11 May the judge circulated a revised version of her judgment in response to Ms Harrison's e-mail. I shall refer to this revised judgment which was circulated on the afternoon of 11 May as "judgment 3".

In the main body of her judgment, the judge made only minor changes to the text. Her findings in judgment 3 remained the same as they were in judgment 2. The principal respect in which judgment 3 differed from judgment 2 was that after her findings the judge set out the text of Ms Harrison's e-mail dated 8 May together with the judge's responses to the matters raised in that e-mail, the judge's responses being in bold print.

The judge changed the layout of the appendix to judgment 3. She added to the appendix the written closing submissions of the father and she removed from the appendix various headings in the closing submissions.

Once everyone had read and digested judgment 3, the court re-convened at about 2.45 on 11 May. Ms Harrison on behalf of the mother stated that her client intended to appeal against judgment 3. Having heard submissions from all counsel, the deputy judge decided that he could not make substantive progress with the case that day. He adjourned the proceedings concerning the four children pending the outcome of the proposed appeal.

Having decided to adjourn the proceedings pending the anticipated appeal, the deputy judge faced the problem of what order the court should make. After hearing submissions from counsel, the judge made or authorised the making of two separate orders.

The first order was intended to reflect what the judge had decided in judgment 1. The second order embodied and explained the deputy judge's decision to adjourn the proceedings despite the expiry of the 6 month period on 12 and 13 May 2015.

The first order is a problematic document. It bears the date 21 April. Clearly, that is wrong because it is an attempt to embody what the judge said in judgment 1 which she delivered orally on 23 April. I shall, therefore, treat this as an order with a typographical error in the date itself. I shall refer to it as "the April order".

The second problem with this order is that it records that the court gave its decision on 21 April and that it made findings as set out in the schedule of findings sought by the local authority dated 23 April. Clearly, those two dates are both wrong. What the order means to say in the relevant paragraph, which is 7(b), is that the court gave its decision on 23 April and the court indicated in its judgment that the findings which would be made were those set out in the schedule of findings sought by the local authority dated 21 April. I shall assume that those two typographical errors are duly corrected and that is what the operative paragraph of the order means.

The third problem with the April order is that it reads "ordered by Her Honour Judge Lyon." In fact, Her Honour Judge Lyon did not approve the order, we are told, or have any involvement in the formulation or approval of this order. This was an order issued by the court in circumstances where Her Honour Judge Lyon was unavailable. The deputy judge was doing his best in a very difficult situation. This was clearly an order which was intended to embody the contents of judgment 1.

An additional problem with this order is that it was issued some time after the judge had announced that she no longer agreed with what she had said in judgment 1.

There is some doubt as to the date upon which the April order was actually issued. Mr Heaney, counsel for the father, tells us that it might have been made on 12 May or alternatively on 6 June after a hearing at the Chester Civil Justice Centre. Be that as it may, that was the first of the two orders emerging at this stage of the litigation.

The second order made by the deputy judge is dated 13 May. It sets out who the parties were. It sets out the positions of the parties in the litigation. The operative paragraph is 7(b), which reads as follows:

That paragraph cannot literally mean what it says. The April order reflecting the contents of judgment 1 contains findings which counsel for the mother seeks to support. What the mother by her counsel was proposing to appeal was judgment 3. Judgment 3 was circulated on 11 May, not 23 April, and was not embodied in any order.

I shall therefore, read paragraph 7(b) of the order dated 13 May as if instead of the words "the order of 23rd April 2015" there were the words "the judgment of 11 May 2015".

The mother was aggrieved by the findings contained in judgment 3. Accordingly, she appealed to the Court of Appeal.

Part 3. The appeal to the Court of Appeal

By an appellant's notice filed on 26 May 2015, the mother appealed to the Court of Appeal against judgment 3 on grounds which I would summarise as follows:

(i) The judge has given no satisfactory reason for changing her decision on the sexual abuse issue.

(ii) There are numerous factual errors in judgments 2 and 3.

(iii) The judge failed to address the submissions advanced on behalf of the mother.

(iv) The judge cut and pasted a large part of the guardian's submissions into judgment 3 without any independent analysis of those submissions.

(v) There is an inconsistency between the judge's rejection of the father's case in respect of physical abuse and the judge's acceptance of the father's case in respect of sexual abuse.

The guardian has served a skeleton argument supporting the mother's appeal. The guardian adopts many of the mother's arguments and adds one new point.

The guardian's additional point is this. Since the judge stated that she was going on compassionate leave on 8 May, there will be a risk of a perception or speculation that at the time when the judge circulated judgments 2 and 3 she was not in a position to carry out her judicial responsibilities due to her need to be released from those responsibilities on compassionate grounds.

The local authority also supports the mother's appeal. It has served a short position statement adopting all of the mother's arguments.

The only party resisting the mother's appeal is the father. The father is understandably anxious to preserve the finding in judgment 3 that he has not sexually abused T.

The father has served a skeleton argument which takes two main points. First, what the judge said on 23 April was not a judgment as such. It was a provisional non-binding outline of what her future judgment was likely to contain. Secondly, the father argues that, in any event, the judge is entitled to change her mind even after giving a full judgment, provided she does not to so capriciously. In this case, the judge has not done so capriciously. Accordingly, judgment 3 should stand.

The appeal came on for hearing today. Mr Karl Rowley QC, leading Ms Leona Harrison, appears for the mother. Mr Rowley did not appear below. Mr Simon Heaney appears for the father, as he did below. Mr Andrew Haggis appears for the children's guardian, as he did below. Ms Joanna Mallon appears for the local authority, as she did below.

At the start of the hearing, the court raised the question whether it had jurisdiction and, if so, what order was under appeal today. Mr Rowley submitted that the findings in judgment 3 were under appeal even though those findings are not embodied in any formal order. In support of that submission, he relied upon In re B [2000] 1 WLR 790.

The court pointed out that the only order in existence which records the judge's findings at the fact finding hearing is the April order. Mr Rowley submitted that that order was superseded by judgment 3.

Mr Heaney for the father argued that judgment 3 superseded the April order. He added that if he was wrong and if the April order was effective, then he sought permission to appeal the April order. That order could not possibly stand in the light of the judge's later change of mind.

Having heard submissions on the jurisdiction issue, we then heard argument on the appeal against judgment 3, assuming that this was a live appeal. Counsel then helpfully, but concisely, elaborated the points in their respective skeleton arguments.

Having set the scene, I must now reach a decision on the issues.

Part 4. Decision

The first issue to address is whether this court has jurisdiction and, if so, what order is under appeal.

The traditional rule was that appeals only lay against orders, not against judgments or findings contained in judgments. See Lake v Lake 1955 P336. That rigid rule could not survive unaltered in the context of proceedings under the Children Act, where preliminary fact-finding hearings are common practice.

In In re B [2000] 1 WLR 790, the local authority brought care proceedings in respect of an 18 month old child who had sustained injuries. At the end of the first part of a split hearing the judge, in a reasoned preliminary judgment, found that the injuries were non-accidental and had occurred while the child was in the care of the mother and her current partner. He also found, despite being unable to fault their reasoning, that the evidence of two radiologists as to the date of the latest injury could not be right because the grandmother had found nothing wrong with the child who had been in her care that week. Having determined those issues, but without making any declaration or specific order, the judge adjourned the proceedings to a later date for final disposal.

The local authority appealed. At the start of the appeal, the issue arose in that case, as it now arises in this case, as to whether the Court of Appeal had jurisdiction to hear the matter. The court held that it did.

Dame Elizabeth Butler-Sloss, President of the Family Division, gave the leading judgment in which she came to the conclusion that the court did have jurisdiction for the reasons which she set out on page 793. Otton and Schiemann LJJ agreed. Schiemann LJ gave a short concurring judgment dealing only with the jurisdiction issue at page 798, which it may be convenient for me to read out:

The present case is more problematic than In re B for a number of reasons. First, the judge gave a multiplicity of judgments at the end of the fact-finding hearing. The judge delivered judgment 1 orally. She issued judgments 2 and 3 in draft, but never formally handed down either of those judgments, nor did any other judge acting on her behalf hand them down.

The only formal order made embodying the judge's findings of fact was the April order. That order was made in either May or June, after the judge had announced that she abandoned the main finding of fact in judgment 1. The judge never approved the April order.

In my view, in those circumstances the April order, although the only one formally made after the fact-finding hearing, cannot be the effective order of the Liverpool Family Court.

If I am wrong in that conclusion, then I would give the father leave to appeal against that order and allow the father's appeal. An order which the judge has not approved and which contains findings with which the judge disagrees cannot possibly stand as the judgment of the court. On that hypothesis, the whole proceedings would have to be re-heard by a different judge.

Let me now assume that I am right in concluding that the April order is ineffective. The question then arises as to the status of judgment 3. The judgment was circulated in draft. Neither the judge nor the deputy judge formally handed down the judgment, nor did the court give effect to it in any order.

On the other hand, the deputy judge's order of 13 May proceeds on the assumption that judgment 3 is effective. After one has made necessary corrections to paragraph 7(b) of the deputy judge's order dated 13 May, that order refers to the mother's intention to appeal against judgment 3.

In the circumstances, I conclude that we should treat the findings of fact in judgment 3 as the effective outcome of the fact-finding hearing and proceed to deal with the mother's appeal on that basis. In taking such a course, this court is following, and in a small way developing, the approach which the Court of Appeal sanctioned in In re B .

I turn now to the mother's appeal. I have already outlined the parties' competing contentions. It is helpful to begin by focusing on the father's arguments for upholding judgment 3.

Mr Heaney's first argument places a heavy emphasis on paragraph 1 of judgment 1. I have set that paragraph out in part 2 above. It is quite true that the judge began judgment 1 by saying that she was not to be held to anything which she now says. Nevertheless, she then went on to set out clear findings on all the major issues between the parties.

Reading judgment 1 as a whole, it is quite clear to me that what the judge was doing was stating her findings of fact, but leaving over to a future perfected judgment the full explanation of the background and the reasons which led her to make those findings of fact.

In some parts of judgment 1, the judge makes it plain that she is reading out sections of a document which she is holding in her hands. It is quite clear that the judge was working from a draft judgment which she was proposing to expand upon before finally handing down. If the judge was not committing herself to decisions on the main issues of fact between the parties, there was no point in giving judgment 1 at all.

I come now to Mr Heaney's second argument. For the second argument, Mr Heaney places heavy reliance upon the decision of the Supreme Court in Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8 ; [2013] 1 WLR 634 .

In that case, there were care proceedings brought by a local authority in respect of two children. One of those children had been found to have numerous non-accidental injuries. The judge held a fact-finding hearing to determine the identity of the perpetrator or perpetrators. Each parent accused the other of being the sole perpetrator.

The judge gave an oral judgment which was later transcribed under the heading "Preliminary Outline Judgment." In that judgment, the judge concluded that the father was the perpetrator and an order was drawn up to that effect. Before that order was formally sealed, the judge gave a second "perfected judgment" holding that, after further consideration of the evidence, she was unable to find to the requisite standard which of the parents had injured the child and it could have been either of them.

The mother appealed to the Court of Appeal. A majority of the Court of Appeal held that the judge should not have reversed her decision. The majority of the Court of Appeal held that the findings in the first judgment should stand as the findings of fact as to the perpetration of the injury.

The father appealed to the Supreme Court and the Supreme Court allowed his appeal. The court held that the power of a judge to reverse his decision at any time before his order was drawn up and perfected by being sealed by the court was not limited to exceptional circumstances. The overriding objective in the exercise of that power was to deal with the case in question justly.

The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.

The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.

At paragraph 46, Lady Hale said this:

Mr Heaney submits that there are parallels between Re L and the present case. The judge here, as in Re L , reflected upon matters after giving judgment number 1. The judge came to the conclusion that she was wrong in relation to sexual abuse. The father had not sexually abused any of the boys. Accordingly, the judge said so in judgment 2 and judgment 3. In this case, as in Re L , the judge responded to an e-mail from counsel. During that exercise she thought more fully about the issues.

The difficulty with Mr Heaney's argument is this. In the present case, unlike in Re L , the judge did not give any satisfactory explanation for her changed decision. The judge did not say that she had reflected further on the evidence and come to the conclusion that her initial decision was wrong.

What the judge said in judgment 3 was this:

That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.

At paragraph 13 of judgment 1, the judge said:

The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

There are, I am afraid, other serious shortcomings in judgment 3. In particular, the judge cuts and pastes a large part of the guardian's skeleton argument into her judgment. That is not the proper way to prepare a judgment. The judge should examine the parties' competing submissions and explain why he or she prefers one argument to another.

Also, judgment 2 contains a number of factual errors identified in the skeleton arguments, which the judge states that she has corrected judgment 3 when she has not, in fact, done so.

Mr Heaney submits that the judge has included sufficient detailed analysis in judgment 3 to justify her decision. He submits that had although it took three attempts, in the end the judge has produced a judgment which stands up to scrutiny.

I do not agree. In my view, the history of this case is such that no one can have any confidence in the judge's findings contained in judgment 3.

In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.

Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.

On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.

If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.

I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.

She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.

This is not, in my judgment, a circumstance described by the Supreme Court in Re: L . That is where the change of mind can stand. In this case the change of mind was not made judicially.

I say in parentheses that this was a public law children's application and I can see no basis for a split hearing upon the facts.

Be that as it may, I am very concerned about the other aspects of the judge's conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

LORD JUSTICE BEAN: I agree with both judgments.