England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
(HIS HONOUR JUDGE JACK)

		Royal Courts of Justice Strand London WC2A 2LL
		24 April 2013

LORD JUSTICE RYDER:

1. TC is the father of two children who are the subject of care proceedings begun by Kingston-upon-Hull City Council on 8 April 2011. I shall refer to the children as K, who is aged five, and S, who is aged three. Their mother is SM.
2. The local authority first became involved with the family in mid 2007 before K's birth when allegations of sexual abuse were made against the father by another child, M, who is mother's nephew. Care proceedings were issued when mother permitted father to have unsupervised contact with the children in breach of a protection agreement with the local authority.
3. The children's parents conceded the threshold criteria in section 31 of the Children Act 1989, but the local authority pursued allegations of sexual abuse to a finding of fact hearing on the basis that although father did not seek to care for either of the children, he did seek to exercise unsupervised contact with them.
4. The proportionality of what then occurred is of concern, even though it is not an issue in this appeal. How it was that a question of fact, which the judge rightly described as straightforward, could take more than 12 months to be determined at a series of adjourned hearings beginning on 9 January 2012 and finishing on 28 January 2013, remains unclear. From the perspective of the two children, that delay is most regrettable, even more so given the fact that the welfare and placement questions are yet to be decided.
5. This case may have benefited from the determination of the factual and assessment evidence relating to the parents being brought together at the same hearing. In the event, this court has heard from Mr Power for the appellant and Mr Hagan for the local authority and it appears that this possibility may now come to fruition.
6. The grounds of appeal concern the findings of fact made by the judge in a judgment handed down on 28 February 2013. TC seeks to persuade this court to set aside findings made against him in respect of all three of the allegations considered by the judge. The allegations were of sexual abuse by him against his brother, R, when they were both children in the 1970s, the mother's nephew, M, and his own child, K. The essence of this part of the appeal is that the findings made were against the weight of the evidence and are accordingly plainly wrong.
7. The local authority, the children's guardian and the mother have provided the court with closely analysed written submissions as to the evidence and they each oppose the appeal. They provided the same close analysis to the court below. The children's guardian and the other are excused attendance today because they adopt the position of the local authority.
8. The mother's position, given the evidence she gave to the judge below, is of some significance. She does not support father's appeal. On the facts, this appeal faces the problem that there is simply insufficient evidence, unchallenged or otherwise available, to put into the balance to doubt the conclusions arrived at by the judge. He cannot be said to have been wrong, and Mr Power has rightly been very careful in advocating his lay client's position.
9. The appeal was attractively put on a second basis; not just that the judge's findings were wrong, but that he had not sufficiently explained his reasons. It was on this latter question that permission was focused. I have sympathy with Mr Power's submission on this limb. A fact-finding inquiry lasting more than seven days in court over a period of a year has result in a reserved judgment of just less than four pages. This court now knows that the brevity arises out of both personal circumstances that relate to the judge and his professional commitments. The judge has candidly and helpfully informed the parties and this court of those circumstances by way of a document which appears to have come into the hands of the parties around 5 April 2013 and which was provided to this court today.
10. That document is of some significance. In it, the judge effectively suggests that the short judgment that he came to in January was inadequately brief. If one considers the content of the judgment by reference to recent determinations by this court on the adequacy of judgments, the judge was right to come to this view. The relevant principles are helpfully summarised by Munby LJ (as he then was) in Re A and L (Fact-finding Ex Tempore Judgments) [2011] EWCA Civ 1611 at paragraphs 33 to 35:

"33. As Ms Ball's argument developed, it became clear that the ambit of the appeal was limited. Ms Ball, rightly and realistically in my judgment, did not seek to challenge the judge's findings in relation to the sexual abuse perpetrated by X, Y and Z. So we proceed on the basis that the children were abused. Nor, although it had been suggested in the grounds of appeal that the findings against the mother of sexual abuse were plainly wrong, did Ms Ball dispute that there was evidence on which it was open to the judge to make such findings. Again, in my judgment, that concession was appropriately made. The appeal, in other words, comes down to a challenge to the judge's reasoning and a challenge to the adequacy of the reasons he gave.

34. There are two principles in play here. The first is that explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. So far as concerns a judge's approach to a case and his reasoning his 'reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.' An appellate court, Lord Hoffmann continued, 'should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.'

35. The other principle, relating to the adequacy of a judge's expressed reasons, is that explained by Lord Phillips of Matravers MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [17]-[21]. For present purposes it suffices to refer to how Thorpe LJ put it in Re B (Appeal: Lack of Reasons) [2003] ECA Civ 881, [2003] 2 FLR 1035, para [11]:

'the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?'

Thorpe LJ had previously observed that one should not ignore the 'seniority and experience' of the particular judge, the 'huge virtue in brevity of judgment', and that the 'more experienced the judge the more likely it is that he may display the virtue of brevity.' I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons."

11. Mr Powers' difficulty is not so much that the judgment in this case lacks reason, it is that it assumes knowledge of the alleged facts and the evidence presented to the court. Indeed, the judgment is almost exclusively the reasons come to by the judge which, on the face of it, may satisfy the test, despite the extraordinary brevity. What it does not do is to set out the summary of the evidence in relation to each allegation, and the judge agrees that that is not acceptable, not least because the judgment on its own cannot be understood by the lay reader. It needs more.
12. I have come to the conclusion, having heard the submissions of Mr Power and Mr Hagan, and having read the careful written materials from the other parties who are not present, that this appeal should be allowed. I would ask the judge to provide further and better particulars of the evidence he has accepted and rejected and to do so in the judgment that he is due to provide at the conclusion of the part-heard welfare hearing next month. If one composite judgment is provided to the parties in respect of the evidential aspects that are missing and the welfare conclusions, then, in my judgment, no prejudice will be caused to the children and no further delay will be occasioned in this case.
13. So on that limited basis I would allow the appeal and direct that further and better particulars of judgment be given at the conclusion of the welfare hearing.

LORD JUSTICE JACKSON:

14. I agree.

LORD JUSTICE THORPE:

15. I also agree.

Order: Appeal allowed