England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT AND FAMILY COURT
HIS HONOUR JUDGE PARKER
LV14C02983

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/04/2016

Lady Justice Black:

1. This appeal by the mother of two children (E who is 4 years old and K who is 3 years old) is against orders made by His Honour Judge Parker on 11, 14 and 27 January 2016. At the conclusion of the appeal hearing, in order that the parties could make progress with the case in the Family Court, we announced that the appeal was allowed for reasons which would be given later. This judgment sets out my reasons.
2. Judge Parker was himself engaged upon an appeal against orders made by lay justices sitting in the Family Court in care proceedings. The local authority had sought care orders in relation to E and K, as recommended by the social worker, the guardian, and a psychologist who had assessed the children's mother. However, having heard the mother giving evidence for over three hours, the justices concluded that she had made material changes in her life and acknowledged past problems, and they differed from the recommendation of the professional witnesses. Accordingly, on 29 October 2015, they made supervision orders which, absent the local authority's appeal to Judge Parker, would have resulted in the children returning to the care of the mother. The local authority, however, appealed contending that there had been serious procedural irregularities and that the decision of the justices was wrong for a number of reasons.
3. The case was listed before Judge Parker for four days, starting on 11 January 2016. As recorded in his case management order of 25 November 2015, the plan was that the first two days would be devoted to hearing the appeal and, if the appeal were to be allowed and a re-hearing ordered, the final two days would be used for the re-hearing.

Order of 11 January 2016

4. At the outset of the case on 11 January 2016, the judge made a further case management direction, namely that the mother would give oral evidence at the appeal hearing. This was an unusual course and the judge gave a short judgment on 11 January explaining why he had adopted it.
5. In preparation for the appeal hearing, a transcript of the evidence of several of the witnesses at the care hearing had been sought, including that of the mother. The judge considered the transcript of the mother's evidence "woefully inadequate". There were many references to her evidence being inaudible and, in the judge's view, this rendered the transcript "incoherent". He thought it was "of insufficient quality for the court to perform a proper assessment of the mother's evidence". This concerned him because he thought it would disable him from carrying out what he saw as a necessary part of his function on the appeal. The judge's concern and his reasoning for the solution he adopted appear from the following passages in his case management judgment:

"5. ….. This court, the appellate court, is …. being asked to express its judgment on whether the magistrates were wrong based upon an inadequate transcript of the mother's evidence, setting that against the findings of the magistrates and also, of course, the written evidence and transcripts presently held of the psychologist and also the written evidence of the social worker and, I anticipate, the written evidence and transcript of evidence of the children's guardian.

6. My real concern about approaching the case in that way is that the mother is prejudiced. How can it be in the mother's best interests, when that part of the evidence that was the basis for reliance within the judgment of the magistrates, namely the mother's evidence before them – the single most important piece in the jigsaw for the magistrates, looking at their written reasons – that the appeal proceeds without a coherent account of what the mother said, that appears to have been so persuasive for the magistrates that they felt able to reject the evidence of the three experts? Of course, in my judgment, the answer to that is that it cannot be in the mother's best interests. She has to have the option of restating her case in a coherent way before the appellate court such that her case can be put as well and as strongly as it can be put. If the opposite view was taken by this court then the court would be left considering an incoherent account of the mother's evidence set against coherent accounts of all those witnesses who gave evidence that was the antithesis of the mother's case. Fairness, in my judgment, demands in this case that the mother has the opportunity to put that evidence again before me."

6. In so deciding, the judge recognised that ordinarily appeals are dealt with by way of review but he seems to have seen the process that he instigated as a re-hearing, within the provisions of Rule 30.12 of the Family Procedure Rules 2010.

The appeal hearing and the order of 14 January 2016

7. The mother duly gave evidence orally to Judge Parker and he set out what she said, and his impressions of her, starting at §36 of his judgment of 14 January 2016. At §60, he came to ask himself whether, "based on the available evidence …. the magistrates were right to find that the mother was in a different place to February 2015" when the children had come into foster care. He accepted that she had resolved some of her problems, but concluded that there was insufficient evidence of material change and that there was a high risk of a relapse, which could not be managed by a supervision order. He determined that, for a number of reasons which he set out, the justices had been wrong to reach the conclusion that they did. He concluded his judgment in this way:

"In those circumstances, the appeal is allowed and the matter will now be listed for re-hearing on 8 February."

8. The order of 14 January 2016 provided, inter alia, for the appeal to be allowed, for the matter to be listed for "re-hearing/Final Hearing" on 8 February with the social worker, the mother and the guardian as witnesses, and for updated evidence to be filed by the mother, the local authority and the guardian for that hearing.

The next hearing and the order of 27 January 2016

9. At a further directions hearing on 27 January 2016, counsel for the mother renewed an application he had first made at the conclusion of the appeal hearing for Judge Parker to recuse himself, essentially on the basis that he had made findings about the mother at the appeal hearing which were unnecessary for the appeal and had the effect of rendering the scheduled re-hearing otiose. The judge refused that application, explaining that he considered that it had been unavoidable to make findings about the mother's evidence and that, in his view, those findings did not render a re-hearing otiose because it was still necessary to decide between the care and placement orders sought by the local authority and the mother's proposal of placement at home in the context of a care order. He drew an analogy with findings of fact hearings, where the judge finding the facts almost always goes on to deal with the final disposal of the care and placement application, and indeed should do so to keep proper continuity, as he thought should happen here. He said that the findings could be revisited if there had been a change. His view was that in any event, even if he recused himself, the findings he had made at the appeal hearing would be carried forward to the new judge and "would stand because they were not appealed successfully" (§6 27 January judgment).
10. A second application was made on behalf of the mother, namely for an independent social worker to be instructed to prepare a report. The judge rejected that application on the basis that there was no hole in the evidence that needed filling by such a report and the process would cause delay which would be very prejudicial to the children.

The mother's appeal to this court and the positions of the other parties

11. The mother argued that the procedure followed by the judge was fundamentally flawed. The appeal hearing went awry, in her submission, by virtue of the judge hearing oral evidence from her and forming his own conclusions about her when his focus should have been upon the justices' assessment with a view to determining whether they had gone wrong. He thus went outside the remit of an appellate judge. The problem was compounded, in her submission, by the fact that the findings made at the appeal hearing on the basis of only part of the evidence predetermined the re-hearing which the judge ordered to follow and which could not therefore be a fair hearing. She submitted that, furthermore, the judge himself could not properly go on to hear the scheduled re-hearing; he should have arranged for it to be in front of another judge, who should not have sight of the findings made in the appeal process. Given the passage of time, the court would need an up to date analysis of the situation for the re-hearing and, the mother submitted, the judge should have recognised that in the particular circumstances of the case it was necessary to have an independent social work report.
12. The mother was supported by the father in the appeal. Despite the fact they are now separated, they both want the mother to resume care of the children. The local authority opposed the appeal, seeking to uphold the decisions of Judge Parker.
13. The guardian's position was slightly more complex. She supported the appeal but in part only. The flaw that she identified in the appeal process was that the judge had, in effect, conducted a re-hearing prior to adjudicating upon the appeal in the normal way. He was correct to hear evidence from the mother, in the guardian's submission, but should not have heard evidence from her which went beyond that given to the justices and should not have determined issues that "could be viewed as final issues" which would have to be considered at the re-hearing. It was put in this way in the guardian's counsel's skeleton argument:

"….something about the fact that oral evidence was heard, and that findings were made on that evidence, rendered the re-hearing of the final hearing by the same court unfair, or at the very least gave the appearance of being unfair."

Accordingly, the judge was wrong, in the guardian's submission, not to recuse himself as requested. However, the guardian argued that the judge was not wrong to allow the appeal and that the proper course now would be to remit the care case for an expedited re-hearing before another circuit judge. The question of another expert should be considered at a directions hearing in preparation for that re-hearing, she submitted.

Discussion

14. In setting out my conclusions about the appeal, I propose to say as little as possible about the facts of the case and the conclusions of the justices because, by our order at the end of the appeal hearing before us, we remitted the local authority's appeal to the Family Court for re-hearing. I would not like anything I say to influence or undermine that process. This is particularly so as we did not hear argument about the substance of the local authority's appeal, the concentration being rather upon the process adopted by Judge Parker. Fortunately, it is not necessary to go into the details in order to explain why I formed the view that I did of matters.
15. The provisions of Rule 30.12 of the Family Procedure Rules 2010 which governed the appeal to Judge Parker in this case are almost identical to the provisions of Rule 52.11 of the Civil Procedure Rules 1998 which govern a large number of other types of appeal, including those to the Court of Appeal. Both rules provide that "[e]very appeal will be limited to a review of the decision of the lower court" unless different provision is made elsewhere for a particular category of appeal or (the provision upon which Judge Parker relied) "the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing". As for oral evidence, the default provision, set out in Rule 30.12(2) and Rule 52.11(2), is that it will not be received and, although the power to permit it does exist, in practice it is very rare indeed for there to be oral evidence on appeals.
16. In the vast majority of cases, no question of an appeal taking the form of a re-hearing even arises, the general rule that appeals are limited to a review of the decision of the lower court simply being observed as a matter of course. Counsel for the appellant mother cited a passage from In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 which underlined how rare it is for an appeal to be dealt with by way of a re-hearing and identified the attributes of the exceptional cases in which this occurs. Although, in this passage, Lord Neuberger was focussing particularly on the role of the appeal court when considering the proportionality of an order made by the first instance court, I see no reason why his comments should be confined to that situation:

"86. …..There is, in my view, no reason why the Court of Appeal in a case such as this should not have followed the normal, almost invariable, approach of an appellate court in the United Kingdom on a first appeal, namely that of reviewing the trial judge's conclusion on the issue, rather than that of reconsidering the issue afresh for itself.

87.  That this is the normal function of the Court of Appeal is made clear by CPR 52.11, which states that, save in exceptional cases, every appeal is limited to a review rather than a re-hearing and the appeal will be allowed only where the decision of the lower court was 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'. The 'exceptional cases' are, as a matter of principle and experience, almost always limited to those where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or 'rehear', the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance."

17. If the question does arise as to whether it would be in the interests of justice to hold a re-hearing, the court will look to see whether there are any special features which support a departure from what is overwhelmingly the normal course. In so doing, it seems to me that the court has to keep firmly in mind the limits of its proper role as an appeal court. The authorities are peppered with reminders that an appeal court should be reluctant to interfere with the assessment of credibility and the findings of fact made by a trial judge who has seen the parties and the other witnesses. For present purposes, I alight upon what Lord Wilson had to say on the subject in In re B (A Child) (supra), where he dealt also with the approach that should be taken by an appellate court to a decision of a family judge about a child's future:

"41. Into its review of a trial judge's determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski [1999] 1 WLR 1360 , 1372 Lord Hoffmann said:

"The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc [1997] RPC 1, 45: 'The need for appellate caution in reversing the trial judge's evaluation of the facts is based on much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made on him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'"

42. Lord Hoffmann's remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been as nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child."

18. In the present case, it was the justices who had the advantages of the trial judge, and Judge Parker, as the appeal court, was bound to approach their decision with the respect described by Lord Wilson. When deciding what to do about the inadequacies in the transcript, he should have asked himself what part the transcript could legitimately play in the appeal process, bearing this in mind. As his role was not to attempt to reassess the mother's evidence himself at second hand, on the basis of the transcript, with a view to determining whether the justices' reliance upon her had been misplaced, did he actually need a complete transcript of her evidence?
19. In order to answer this question, Judge Parker needed to consider how the local authority proposed to put its case before him. There can be appeals where a detailed study of what a witness said is required. However, nothing in the argument that this local authority sought to advance to the judge by way of appeal turned on any particular passages in the transcript of the mother's evidence. It was not their case that the justices had mistaken or failed to give weight to particular things that the mother said in the course of her evidence and, if I recollect correctly what was said to us in submissions, the local authority had not in fact sought a transcript of any of the evidence themselves; the idea came from the judge. The thrust of their appeal was that the justices had failed to evaluate the mother's evidence having proper regard to the history of the case and the other evidence, including that of the guardian, the social worker and the psychologist, and that their conclusion that her evidence established that there had been real change in the situation which had caused problems for the children in the past was untenable. An appeal on grounds such as this would normally be advanced by means of submissions drawing attention to aspects of the evidence which demonstrated the flaws in the justices' conclusions and to deficiencies in their written reasoning. It is by no means always necessary to have a transcript of the evidence in the court below for this purpose and especially where the argument does not turn on precise words used by the witnesses in the course of oral evidence. However, if the judge thought that he needed better information about what the mother said than emerged from the imperfect transcript here, he should have explored alternatives methods of obtaining it, rather than simply embarking upon re-hearing her evidence. The transcript provided a good framework, even if deficient in some details, and notes of evidence taken by counsel who appeared before the justices might well have filled in the gaps sufficiently, for example.
20. This was not, in my view, one of those exceptional appeal cases in which a re-hearing was required in the interests of justice. Indeed, as things turned out, the process disadvantaged the mother. By directing at the outset of the appeal that she would give evidence again in front of him, it seems to me that, albeit for the very best of reasons, Judge Parker inadvertently deprived her of the opportunity to attempt to persuade him that the favourable determination of the justices should be respected, recognising their advantages as the tribunal which had heard all the evidence, and reached conclusions in the light of it. Given the nature of the local authority's appeal arguments, there was no need for him to have proceeded in this way and it was inappropriate for him to have done so.
21. It was submitted to us that the process before the judge was confused, having elements of both a re-hearing and an appeal. I agree with that submission. The confusion is demonstrated not only in the hearing itself but in the directions that the judge gave afterwards which provided for a further re-hearing in front of him, with his adverse findings about the mother carried forward to that re-hearing. The whole process undermined the mother's position, despite the judge's intention that it should assist her. The favourable findings of the justices, reached following a hearing at which oral evidence was given by all of the key witnesses, were dislodged in favour of adverse findings made by the judge, who had heard only from the mother. In fairness to the judge, it should be recognised that the mother's counsel did not seek to put questions to the other witnesses. He explained to us that, having unsuccessfully resisted the judge's proposed course of hearing oral evidence from the mother, he understandably did not consider that it would be appropriate to appear in this way to be agreeing to the process that the judge had imposed, and nor did he consider that cross-examination would assist. However it came about though, it was not fair to the mother for the adverse findings made at a partial re-hearing of this kind to be carried forward into the next re-hearing.
22. So, for the reasons I have set out, I concluded that the process adopted by Judge Parker on the local authority's appeal to him was not appropriate or fair to the mother, even though he embarked upon it with the best of intentions. The proper course was therefore to set aside all the orders that he had made in connection with the local authority's appeal and to return the matter to the Family Court for that appeal to be determined afresh. Although, at the hearing before us, it was contemplated that directions would be given by the Family Division Liaison Judge for the Northern Circuit with a view to the local authority's appeal being listed, it was subsequently arranged that Judge de Haas would take charge of the directions instead. It is not necessary, or desirable, to say more on the question of the mother's application for a further report on the situation to be commissioned from an independent social worker. This is more properly the province of the judge dealing with the continuing proceedings at first instance.

Lord Justice Floyd:

23. The judge considered that it would be unjust to the mother to hear the local authority's appeal without hearing the mother's evidence afresh, because of the absence of a full transcript of her evidence given to the justices. He said that the transcript was "of insufficient quality for the court to perform a proper assessment of the mother's evidence". That was his reason for departing from the general rule that "every appeal will be limited to a review of the decision of the lower court…". In Asiansky Television plc and another v Bayer-Rosin (a firm) [2001] EWCA Civ 1792, Dyson LJ (as he then was) explained, in the context of CPR 52.11(2), what was necessary before it is in "the interests of justice to hold a re-hearing":

"80. There must, however, be some feature of the case that unusually makes it unjust for the appeal to be limited to one of review. The fact that the appellant wishes to rely on evidence that was not before the lower court is not often likely by itself to be a sufficient reason for holding a rehearing rather than a review. That is because the power given by CPR r.52.11(2) to receive such evidence is exercisable whether the appeal is by way of rehearing or review.

82. But there may be cases where it is difficult or impossible to decide an appeal justly without a rehearing; for example, if the judgment of the lower court is so inadequately reasoned that it is not possible for the appeal court to determine the appeal justly without a rehearing; or if there was a serious procedural irregularity in the court below so that, for example, the appellant was prevented from developing his case properly. But where the decision of the lower court is adequately reasoned and there has been no such procedural irregularity, it should usually be possible for the appeal court to determine the appeal by review and not rehearing."

24. No party in the present case was contending that it could not adequately present its case on the appeal if it were to be conducted by way of a review, or that the court could not decide the case justly by the normal process of review. No party was contending that the absence of a perfected transcript of the mother's evidence meant that a re-hearing was required. In my judgment, the judge's opinion that it would be unjust to the mother to hear the appeal without such a transcript was not justified. It was founded on his belief that it was part of his function to form an overall assessment of the mother's evidence. However, in the circumstances of this appeal, where the mother had already given her oral evidence over a period of three hours to the justices, it did not follow that a minute examination of the transcript would be either necessary or appropriate.
25. Appeals are frequently, and fairly, conducted without the benefit of any transcript of the evidence at all. In the present case, no party was relying on the detail of what the mother had said to the justices in evidence. The local authority was contending that the justices had given insufficient weight to the evidence of the professionals. The mother was relying, and entitled to rely, on the impression which her oral evidence had made on the justices, the findings which the justices had made in reliance on it, and the justices' evaluative assessment of her parental abilities. The judge's decision to hold a re-hearing of the mother's evidence and substitute his own findings of fact about her allowed him to short-circuit all these points, to the disadvantage of the mother. It was not in her interests, or in the interests of justice generally, that he should do so.
26. It is for those reasons, and the reasons more fully expressed by Black LJ with which I am in complete agreement, that I concluded that this appeal had to be allowed. It followed that the order which she has referred to had to be made.