Case No: BS15C00190

 

Neutral citation no. [2016] EWFC 68

IN THE FAMILY COURT

ON APPEAL FROM

FAMILY COURT SITTING AT BRISTOL

[2016] EWFC B115

Bristol Civil and Family Justice Centre

2 Redcliff Street

Bristol

BS1 6GR

 

Monday, 11 July 2016

 

BEFORE:

 

MR JUSTICE BAKER

 

----------------------

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF A AND B (FINDINGS AGAINST SOCIAL WORKER)

 

 

BETWEEN:

 

LINDA FRASER

Appellant

 

- and -

 

A MOTHER (1)

BRISTOL CITY COUNCIL (2)

RespondentS

----------------------

 

 

KATHERYN SKELLORN QC (instructed by Messrs Withy King) appeared on behalf of Linda Fraser

FRANCES JUDD QC and LUCY REED (instructed by Messrs Kelcey & Hall) appeared on behalf of the Mother

CHARLOTTE PITTS (instructed by Bristol City Council) appeared on behalf of the Local Authority

 

----------------------

Digital Transcript of WordWave International Ltd trading as DTI

8th Floor, 165 Fleet Street, London, EC4A 2DY

Tel No: 020 7404 1400  Fax No: 020 7404 1424

Web: www.DTIGLOBAL.com Email: TTP@dtiglobal.eu

(Official Shorthand Writers to the Court)

----------------------

 

JUDGMENT

----------------------

 

 

 

 

1.               MR JUSTICE BAKER: This is an application for permission to appeal by a social worker, Linda Fraser against findings made by District Judge Exton in a judgment in care proceedings delivered on 9 March 2016, [2016] EWFC B115. The application for permission to appeal was initially listed before His Honour Judge Wildblood QC, but by his order of 6 June he adjourned the matter for a composite hearing before me of the application for permission to appeal with appeal listed immediately thereafter if permission granted with a time estimate of two days, to include reading and judgment writing. I heard the matter in London last week on 6 July and reserved judgment until today, 11 July, in Bristol.

2.               Under FPR rule 30.12(3), the appeal court will allow an appeal where the decision of the lower court was (a) wrong or (b) unjust, because of a serious procedural or other irregularity. Permission to appeal must be given when the applicant demonstrates a real prospect of success.

3.               The care proceedings in which the findings against Ms Fraser were made concerned two children, A and B, and allegations that their mother had failed to care for them and had neglected them over a period of time. The allegations against the mother included criticisms of her physical and emotional care of the children, failure to impose boundaries and routines, poor home environment, inadequate school attendance and drug use, leading to both children experiencing significant difficulties, especially B. This was the second set of care proceedings concerning these children. These proceedings were started in February 2015 when the local authority decided that the mother had failed to sustain a satisfactory level of parenting, despite receiving considerable support in the preceding months. Amongst the professionals working with the mother in the case for the local authority was Ms Fraser, who is a consultant social worker.

4.               For the purposes of this judgment, it is unnecessary to go into any further detail as to the allegations against the mother, or the process and outcome of those proceedings. Suffice it to say that the case concluded with no order being made and the children are now at home with the mother with ongoing support from the local authority.

5.               In the course of the proceedings, a case management hearing took place on 2 July 2015 before District Judge Exton to consider various procedural issues. At that hearing, the District Judge made various case management directions, amongst which was a direction for disclosure of various documents, including "case logs of observations by the local authority supporting its assessment of the relationship between the siblings and the mother".

6.               The central allegations made against Ms Fraser are that, following this direction, she (a) obtained authorisation to access the logs relating to certain observations of the mother with the children contrary to the policies of the local authority (b) thereafter made alterations which, in a number of respects, added critical comments about the mother and (c) subsequently, when challenged about this, lied about editing the logs, stating that she had not done so, knowing that to be untrue. Ms Fraser's responses to these central allegations are set out at length in a statement, in subsequent oral evidence and in written submissions filed at various points on her behalf. In essence, however, her case is that she accepts that there is no other explanation for the editing of the case logs, save that they were carried out by her, but that she has no recollection of having done so and denies lying in her evidence about this matter. She relies on evidence that she was under very considerable stress at the time and that she was then, and is now, suffering from significant mental health problems.

7.               The documents produced by the local authority include case logs in both editing and unedited forms. Ms Lucy Reed, who represented the mother at the hearing before the District Judge, noticed discrepancies. At the next hearing (intended to be the final hearing) on 13 to 15 July 2015, Ms Fraser gave evidence in the witness box over two days and was cross-examined about the inconsistencies. In her skeleton argument for this hearing, Ms Reed summarises her evidence in this way: (1) initially a denial that she carried out the edits at all; (2) then a reiteration of that evidence the following morning when she returned to the witness box; (3) subsequently a suggestion that a colleague may have been responsible, accepting at all points that editing of any kind would have been wholly inappropriate. Ms Fraser 's evidence was also challenged in a number of other respects, particularly as to the adequacy of the assessments. It is Ms Fraser's case that, at the time of her evidence on 13 and 14 July, she was under acute stress and was unwell and that her evidence was significantly affected in those circumstances. I shall return to this matter later. Following Ms Fraser's evidence, the local authority reconsidered its position in respect of the number of the threshold findings which it had been seeking in support of its application under section 31 of the Children Act. In due course, the local authority and the mother reached an agreement concerning threshold and, as I have said, the outcome of the proceedings was that no order was made with the children staying at home under the support plan.

8.               Following the hearing, counsel on behalf of the mother prepared a schedule of findings against Ms Fraser and the local authority which she invited the court to consider at the next hearing on 23 July 2015. The schedule included allegations that Ms Fraser had edited logs in breach of the local authority's policies and also that she had contacted a jointly- instructed expert without notice to the other parties, all with a view to bolstering the local authority's case, and further that she had lied about these matters in her evidence on 13 and 14 July. I shall consider the schedule in greater detail below. The order made on 23 ^rd July, in addition to making provisions for the determination of the outstanding substantive issues in the proceedings, also included case management directions in respect of the proposed findings against Ms Fraser. District Judge Exton recited in the order that she was of the view that, if Ms Fraser was seeking to challenge the proposed findings, expert analysis of the local authority's computer system might be necessary. She gave directions requiring the local authority to disclose documents about that system and further copies of case logs concerning the family. By that point, Ms Fraser had been signed off work on health grounds and the court gave further directions seeking clarification about this, as well as giving provisional directions concerning any application by Ms Fraser to intervene in the proceedings. At the next hearing on 13 August, Ms Fraser was given permission to intervene, but problems in obtaining analysis of the local authority's computer systems and ongoing problems with her health meant that the court was not in a position to resolve issues immediately. As a result, the judge decided not to make final orders in the care proceedings at that stage, keeping the proceedings open, in effect, so that the investigation into Ms Fraser's conduct could be continued, but recorded that professionals working with the family should be aware of the plan for the children to remain with the mother.

9.               At this point, it should be observed that some judges in District Judge Exton's position might have decided at that stage that, given the priority for the Family Court to resolve issues concerning the welfare of children, the better course would have been to bring the proceedings to an end with final orders and leave issues concerning allegations about Ms Fraser's conduct and veracity for another process, either a disciplinary process or possibly other court proceedings. District Judge Exton chose not to do that, resolving that an investigation into the complaints about the evidence were a matter for her. No party has sought to argue before me that District Judge Exton was acting ultra vires and accordingly, I shall not comment further on that point.

10.           By the next hearing on 6 November, Ms Fraser had responded to the mother's schedule of proposed findings and also filed a statement, setting out her account of her actions insofar as she was able to explain them, and also giving details of her health problems. Although she has at all times been capacitious, her statement gives details of significant adverse symptoms attributable to a diagnosed anxiety and depressive disorder and the continuing symptoms and impact on her functioning. By 6 November, she remained too ill to attend court and give evidence. On her behalf, Miss Katheryn Skellorn QC, put forward a number of concessions in her position statement which amounted, it is submitted, to a sufficient record of Ms Fraser's professional failings, mis-judgment and lack of probity and it was therefore argued that any further fact-finding process on this issue would be unnecessary and disproportionate. District Judge Exton disagreed and drafted an order indicating that, at the next hearing, Ms Fraser would be required to address the following three issues: (1) her motivation in editing case recordings and whether the edits were made with the intention of bolstering the local authority's case and damaging the mother's; (2) Ms Fraser's truthfulness and her assertion that she did not intentionally lie in her earlier evidence; (3) the extent to which Ms Fraser's conduct may have impacted on the case and, if so, in what way in particular the editing may have undermined the evidence base.

11.           The final hearing of these matters took place on 11 January 2016. Ms Fraser attended and was able to give evidence. Letters from her GP were handed in on her behalf giving this warning:

"Due to the cognitive effects of her depression, I am concerned that her ability to give evidence may be impaired. She describes ongoing symptoms of poor concentration and mental shelling. She also finds it difficult to interpret the subtext of other people's verbal communication at present, eg, sarcasm or humour. I think it very important that the court is aware that her current medical condition will impair her performance when giving evidence to some degree"

According to the agreed note of hearing, Miss Skellorn submitted that, although the GP had expressed that opinion and further indicated that more expert assistance might be required, Ms Fraser did not want to delay the matter any longer. Ms Fraser believed that special measures would be sufficient, those measures being short questions, regular breaks and the opportunity to pause if she wanted to consider the point. According to the agreed note, the District Judge said that if Ms Fraser needed a break at any stage, she just had to indicate, adding that Ms Fraser should not feel embarrassed at any point.

12.           Ms Fraser proceeded to give evidence on that basis. In the course of her evidence, she denied - as she has consistently denied - that she had intended to mis-inform the court or change things. It was not in her thinking to deliberately influence or change things. Cross-examined by Ms Reed, however, she accepted that, although she had no recollection, it must have been she who edited the logs on the afternoon of 2 July 2015 after the hearing (the logs themselves recorded that this had happened); that, when she did so, the court order earlier that day must have been fresh in her mind; and that, at the time she edited the logs, she was aware of the issues in the case, and the things the mother was saying about them. In her evidence in July, Ms Fraser had stated that, prior to editing the logs, she had spoken to a colleague PM, who was the author of a log relating to a conversation with the mother that took place on 16 December 2014 which had been edited on 2 July and which formed the central plank of the allegations on behalf of the mother against Ms Fraser. In her evidence on 11 January 2016, Ms Fraser said that she had definitely had a conversation with PM on 2 July. According to the agreed note of the hearing, Ms Reed put it to Ms Fraser that she must have known when she gave evidence on 13 and 14 July that she had made the edits and Ms Fraser replied that she did not know that she edited. She accepted when she was giving evidence her name was on the record, but she did not recognise the record when she went through it. She could not recall it, and that is why she said she didn't do it. She guessed she was doing other things at the same time and not paying enough attention for this to log in her mind as a conscious action. She agreed that she was aware that things did not add up, but did not understand or could not explain what had happened.

13.           After hearing submissions, District Judge Exton reserved judgment. On 10 February 2016 she sent out a draft judgment for comment. That prompted requests for clarification by both Ms Fraser and the mother. On 9 March 2016, an amended version was circulated and on 22 March the judgment was finally handed down.

14.           The judgment started with a summary of the factual background so far as it related to the issues in dispute. It set out in full the two versions of the case log of the meeting of 16 December 2014 between the mother and PM which had been amended on 2 July. The amendments included several comments which were critical of the mother's parenting. The judge noted that the second version indicated on its face that it had been updated by Ms Fraser on 2 July. The judge recited the evidence given by Ms Fraser on this point at the hearing on 13 and 14 July that she had not edited the notes but had gone through the log in a "quality assurance role" with PM. The judge recorded the evidence of PM to the effect that she had had no involvement with the case for several months and had not been involved in the editing of the note on 2 July, nor had she been involved at all on that date. The judge then recorded expert evidence concerning the local authority computer system to the effect that the changes had probably been made by someone logged in the name of "Linda Fraser" on 2 July. She then recited the intervening history and noted that Ms Fraser had been unwell. She referred to the evidence at the hearing in January and cited passages from the local authority's policy documents concerning case recording. She observed that there was nothing in the policy guidance which enabled the amendments of a record several months later without consulting the author or social worker whose observations were the subject of the record. She noted Ms Fraser's evidence that she may have breached policy by "unfinalising" and editing the log, but that she had added that it was common practice to add comments to logs at a later date.

15.           The judge's analysis of the evidence was structured around the findings sought by the mother as set out in the schedule prepared by Ms Reed.

16.           First, she considered the allegations that on a number of occasions Ms Fraser had improperly, and contrary to the policy of the local authority, obtained authorisation to "unfinalise" a finalised log and edit it. The first and principal focus of the judge was on the log of 16 December. She noted Ms Fraser's evidence that she did not recall making any amendments, but nonetheless took full responsibility for the alterations. The judge commented that "this makes no sense whatsoever". She noted that Ms Fraser had been present in court on 2 July when the order for disclosure of the case logs was made and concluded that on the same afternoon Ms Fraser had altered PM's record of 16 December 2014 incident. The judge did not believe Ms Fraser's evidence that she could not remember or explain her actions. She further found that Ms Fraser did not consult PM about those matters on 2 July, accepting PM's evidence on that point, and she did not accept Ms Fraser's evidence as to how she had acquired the information to alter the record. District Judge Exton concluded on this point:

"I am afraid that my very clear impression is that she altered the case note to bolster the local authority's case."

17.           The judge then considered other alterations to case logs. In respect of one alteration, she found it proved that Ms Fraser had done it but concluded that it was not a significant change. In respect of a third alteration involving a case log by another social worker, GG, she noted that Ms Fraser had made some alterations. She also noted GG's evidence in a statement that she could not recall whether she had made the alterations and that in any event the amended note was accurate. The judge was therefore not satisfied that the finding on this point sought on behalf of the mother was made out.

18.           Secondly, the judge considered allegations that Ms Fraser had, on 6 July 2015, contacted Dr Tantam, the jointly instructed expert, concerning the issue of a possible bridging placement for the mother and children, but had done so without prior notice to the other parties and falsely told Dr Tantam that the other parties had been notified that she would be doing so. Ms Fraser's explanation as recorded by the judge was that she assumed that the local authority legal department would notify the other parties. The judge concluded that Ms Fraser had been reckless as to whether or not what she said to Dr Tantam was true.

19.           The third issue concerned records about a telephone call said to have taken place on 29 October 2014. On 8 July 2015, Ms Fraser had provided some pages of records to support her own assessment. These indicated a record of a phone conversation said to have taken place on that date in October. On behalf of the mother it was alleged that this record had been created by Ms Fraser on 8 July and drafted in a way that concealed from the parties and the court the date on which it was created and therefore concealed the fact that it had only been created after the directions hearing on 2 July. The judge noted Ms Fraser's evidence that she had added the note in July when she saw that the phone call was not recorded because she realised that it had been omitted, but the judge observed that in doing so she had acted in breach of local authority policy. Ms Fraser's explanation for the omission of the date on the amendment was that it was determined by the method used to print the document. The judge rejected this explanation, noting that there were only two pages in all the disclosed documents when the date had been concealed, each of them documents generated by Ms Fraser after 2 July hearing. The judge concluded that it was too much of a coincidence that only those two documents of all the documents disclosed had been printed off in the alleged way described by Ms Fraser.

20.           The second document falling into this category was Ms Fraser's own case log of 5 May 2015. Ms Fraser's evidence was that she did not recall amending this log after 2 July hearing. The judge found that she had amended the note and that in doing so she had acted contrary to local authority policy and that she had concealed the date upon which it was edited, and the fact that it had been edited, with the intention of concealing from the court and the parties the fact that it had been edited after the order of 2 July. In this instance, however, the judge accepted that the content of the amended note was accurate.

21.           The judge then returned to the issue of motive. The mother's case was that the amendments had been made to bolster the local authority case; that Ms Fraser had lied about making the edits knowing that she had done so; that she had suggested PM had edited the record of 16 December 2014 prior to or on 2 July knowing that to be untrue; that she had fabricated the meeting with PM on 2 July to suggest that she or another colleague was responsible for the discrepancies, and that she had falsely claimed that she had carried out a sibling assessment. The judge carefully recorded Ms Fraser's evidence on these allegations, including her denial that she had edited the logs to bolster the local authority case, and her account of being under pressure when answering questions on 13 and 14 July. The judge concluded that it "beggared belief" that she could not remember editing the notes, having analysed the evidence and accepted that Ms Fraser had given false evidence about PM's involvement on 2 July. The judge therefore concluded that the logs had been editing with the intention of bolstering the local authority case.

22.           Finally, the judge that the concluding findings sought by the mother which was expressed in these terms:

"Generally the above findings illustrate on the part of Ms Fraser (a) a negative attitude towards the mother; (b) a disregard for the importance of contemporaneous records and evidential probity; (c) a willingness to manufacture, manipulate or distort evidence after the fact; (d) a contempt for the court process and in the face of the court; (e) a disregard for professional colleagues; (f) a failure to adhere to the HCPC standards of proficiency for social workers; and (g) dishonesty."

On this the judge merely commented, "I have to agree".

23.           The judge then dealt with the findings sought against the local authority, concluding that she would not make findings sought in the light of the local authority's concessions. It is unnecessary for the purposes of this judgment to refer to this aspect of the case in any further detail.

24.           In a further judgment, (after a request for clarification), the judge addressed matters raised and in particular a request for clarification concerning her treatment of the medical evidence. In view of the importance that this issue has attracted in the course of the hearing before me, I read out the passage from the judge's judgment on this aspect in full:

"36. Following my draft judgment, I have been asked to address the medical evidence provided by Ms Fraser in November 2015 and January 2016 and the degree, if any, to which it has been taken into account in reaching the findings made.

37. I am afraid I cannot locate the November 2015 evidence, neither in the court bundle nor on the electronic file. I do, however, have a letter from an occupational health physician dated 7 August 2015 when he states that she is fit to attend court and meetings relating to court proceedings, although it would be helpful if some allowances and additional assistance could be offered on the grounds of her current emotional distress/stress related condition.

38. The letters from her GP dated 7 and 8 January 2016 state that, although there has been some improvement in her condition, she continued to suffer from significant symptoms of depression, remained certified as unfit to work and is likely to remain so for several months. Her ability to give evidence may be impaired in relation to future evidence.

39. When she gave evidence in July 2015, there was absolutely no sign or any evidence that she was poorly at that stage. She adamantly denied altering 16 December 2014 note when, as I have said, she did it following the hearing of 2 July and how could she possibly forget that in the context of that hearing when the local authority opposed the order made and why, after the order I made for disclosure, did Ms Fraser think it was right to alter those case notes?

40. So I have considered the medical evidence submitted after her testimony her July but it does not alter my findings."

The judge then, in further response to the request for clarification, addressed matters drawn to her attention about Ms Fraser's position statement and closing submissions. In the course of doing so, she indicated that she had taken account of those oral submissions made at the conclusion of the case but said that she had analysed carefully all the findings sought and the submissions made did not alter her findings.

25.           Having made those findings, the judge made an order for publication of a version of the judgment, anonymised, save that the local authority and Ms Fraser should be identified but stayed publication until the conclusion of any appeal process. She further direction that unredacted copies of the judgment should be placed on the local authority's files for the children and disclosed to other named agencies involved with the family and to the individual carrying out a local authority independent investigation and also to the HCPC, the professional body responsible for social workers.

26.           On 12 April 2016, Ms Fraser filed a notice to appeal which was subsequently amended. As I have already described, it was listed before Judge Wildblood and then before me. At the hearing before me, Ms Fraser was represented by Miss Skellorn as she had been before the District Judge. Unfortunately, Ms Reed was not available on the hearing dates which the court was able to offer, but the mother has had the advantage, not only of a detailed written submissions prepared by Ms Reed, but also representation at the hearing by Miss Frances Judd QC. The local authority was represented by Miss Charlotte Pitts as it had been at the hearing below.

27.           The submissions on Ms Fraser's behalf as set out in her amended skeleton argument supplemented oral submissions by Miss Skellorn are lengthy and detailed, but can be summarised as follows. It is submitted that District Judge Exton's decision was wrong and/or represented an injustice to Ms Fraser because of serious procedural and other irregularities. The following specific grounds are relied on. First, it is submitted that the structure of the court's enquiry was unclear. Although at the directions hearing in November 2015 the judge had summarised three issues as recited above to be determined at the final hearing, when it came to writing he judgment District Judge Exton had reverted to the earlier schedule of findings filed by the mother as the primary framework. Miss Skellorn submits that this was wrong and unfair. Ms Fraser had previously made a number of concessions and offered an apology which were sufficient to record the extent of her own failings in this case. In the circumstances, the three issue framework, as it was characterised by Miss Skellorn, which came about in the light of the concessions, should have been followed by the judge in her analysis and judgment. It is submitted that District Judge Exton lost sight of the reasons for the mother's schedule being overtaken by the three issue framework, and further lost sight of necessity and proportionality in the light of Ms Fraser's concessions. The judge had persisted in adopting the approach based on the mother's schedule of findings notwithstanding the submissions made by Miss Skellorn at the hearing and in the subsequent request for clarification.

28.           Secondly, it is submitted that District Judge Exton failed to reflect and/or adequate consider the medical evidence concerning Ms Fraser's condition, taking the view that it all post-dated the hearing on 13 and 14 July. District Judge Exton omitted to consider and weigh any effect that Ms Fraser's medical condition may have had on her actions, evidence and recall at various points in the litigation, despite relying on the inconsistencies in her evidence to her disadvantage when making the findings. Miss Skellorn submits that, although the final judgment refers to the medical issue in the passage quoted above, at no point did the judge consider the impact of Ms Fraser's health on her evidence, and in particular her failure to recall editing the logs or to explain her reasons for doing so. It is asserted that the judge failed to appreciate the significance of the medical situation to her enquiry, even when prompted by the requests for clarification.

29.           Thirdly, it is submitted that District Judge Exton failed to record in or engage with the majority of the closing submissions made by Miss Skellorn. A summary of those submissions was attached to the grounds of appeal and I have considered them all carefully. In her oral submissions, Miss Skellorn emphasises in particular: (1) other evidence that Ms Fraser had approached the case in a balanced way; (2) the fact that, had she wished to undermine the mother's case, she could easily have altered her own case logs and not those of other workers; (3) the need to distinguish what Miss Skellorn describes as "scenario one2, namely a specific exercise of bolstering the local authority's case, from "scenario two", namely a desire to edit the log simply to make up for gaps or errors in the records; (4) a number of factors pointing to scenario two; (5) the significance of Ms Fraser's earlier concessions; and (6) failure to give herself a " Lucas" direction.

30.           Fourthly, Miss Skellorn submits that, whether as a result of the complaints as summarised above or otherwise, the judgment was linear and an inadequate analysis of the totality of the evidence. It failed to constitute a sufficiently wide assessment of each area of the evidence upon the other areas of evidence. In making this submission, Miss Skellorn cites as authority my decision in Re IB & EB [2014] EWHC 369 (Fam) and other cases in which I summarise the approach to be adopted in fact-finding hearings in care cases. Miss Skellorn submits that cross-checking evidence on one aspect against the evidence on other aspects would have demonstrated the fallacy in the judge's findings. There was, she submits, a failure to carry out a global, dynamic and holistic analysis of the evidence. She continues:

"It was incumbent upon the lower court where (a) the appellant had admitted a failure ion probity in her oral evidence and (b) where the learned district judge's own three issue analysis was to explore motivation and the intent to hide untruthfulness, for the judge to self-direct following Lucas as per the closing submissions. This is also a case where the lower court relied upon recall, consistency and demeanour as evidence of credibility or untruthfulness, not only did potentially relevant medical evidence fall by the wayside, but there was no appropriate self-direction on issues of memory and credibility."

In this context, Miss Skellorn cites the well-known dicta of Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam).

31.           This leads to the fifth argument deployed by Miss Skellorn, namely that the judge failed to record and/or engage with Ms Fraser's concessions, or the points in mitigation advanced on behalf of Ms Fraser, a failure said to give rise to unfairness in circumstances where the court has drawn significant conclusions regarding Ms Fraser's professional and integrity. It seems to me, however, that this argument is a reiteration of ones previously made by Miss Skellorn. It leads in turn to the sixth ground, which is that the matters complained of give rise to an appearance of bias. In oral submissions, I pressed Miss Skellorn to confirm the particulars of bias alleged. She did so by reference to her written skeleton and to this submission in particular:

"From the ... the single question asked by the learned district judge at the conclusion of the appellant's oral closing submissions on 22 January in response to counsel's offer to render any further assistance required by the court, the learned district judge stated that the appellant had attended court on 2 July and had heard her order for case notes in the face of the local authority opposition, the learned district judge then said words to the effect, of 'I didn't say existing case notes, but I meant that. What led Ms Fraser to think that she had the right to alter the existing case notes?'"

Miss Skellorn commented that the judge's question was asked in the context of having just received very detailed closing submissions which had explored Ms Fraser's concessions, apologies and explanation of her thought processes and actions in making amendments to the case notes. Miss Skellorn submitted that the District Judge's questions gave a clear impression that she was not prepared to engage with the submissions and/or had discounted the summary. This is, Miss Skellorn submits, evidence of bias.

32.           As I remarked in the course of oral submissions, however, it seems to me that to characterise all this as bias is, on any view, wide of the mark. In reality, it is a further reiteration of the complaint recorded above that the judge failed to engage with submissions made on Ms Fraser's behalf. The same goes for the supplementary complaint that she failed to respond adequately to the requests for clarification.

33.           Next, Miss Skellorn submits that the judge fell into error in her deployment of the evidence concerning the local authority's electronic case record system and the policies governing its use. This ties in with the earlier complaint about the judge's alleged abandonment of the three issue framework. It is claimed that, had it been realised that the judge would revert to the mother's findings schedule as the basis of the investigation and hearing, much more detailed disclosure about the record-keeping process would have been insisted upon.

34.           Finally, Miss Skellorn seeks to draw these threads together in a submission that the judge's linear findings and rejection of Ms Fraser's case were wrong and/or an injustice on Ms Fraser with the result that the order authorising publication of the judgment and naming Ms Fraser was unjust.

35.           In her written response, Ms Reed reminded the court of the leading authority of the caution which an appellate court must exercise in considering an appeal on findings of fact in family cases: Piglowska v Piglowski [1999] 2 FLR 763. Ms Reed submits that District Judge Exton saw and heard Ms Fraser give evidence on two occasions spread over three different days and was able to witness her shifts in position in real time and her changes in demeanour. It is submitted that this court should be very slow to interfere with findings of fact based on the oral evidence of witnesses given in the context of an evolving and dynamic trial process.

36.           It is further submitted on behalf of the mother that a judge is not obliged to deal with every argument or identify every factor which weighs in the judgment. The essential features of a judgment are that it should enable the parties and any appellate tribunal to understand the reasoning essential to the judge's decision: see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. In this case, Miss Judd and Miss Reed submit that there were no material omissions in the judgment. The findings were underpinned by a wealth of evidence, in particular Ms Fraser's own written and oral evidence. The judge was uniquely able to assess that evidence.

37.           Counsel for the mother invite the court to reject the submission that the process was unfair to Ms Fraser. The fact that it was protracted and took several months to resolve were attributable to Ms Fraser's health problems and the court's desire to be fair to her. They invite the court to reject the submission that the failure to structure the judgment in accordance with the so-called three issue framework particularised in the order of 6 November was unfair. The schedule of findings filed by the mother underpinned those issues and Ms Fraser was able to adduce and challenge evidence on all matters set out in the schedule. It is Ms Reed's case that Miss Skellorn's submissions addressed each of those findings. It is important to note that Ms Fraser conceded that she had edited the logs after 2 July hearing, although she could not recall doing so. It is therefore submitted that the findings either reflected the concessions or properly flowed from those concessions and the other primary facts. In short, it is submitted the judge simply disbelieved Ms Fraser's evidence.

38.           As for Ms Fraser's medical condition, Ms Reed noted that Ms Fraser's own evidence was that she had not sought any medical attention or been off sick prior to giving evidence in July and had not considered herself unwell. She conceded on 11 January that there was no evidence that she had been unwell at the hearing in July. The judge was entitled to rely on her own impression, says Ms Reed, having seen Ms Fraser give evidence in July. It is submitted that Ms Fraser did not adduce any evidence that came close to demonstrating that she was unfit to give evidence at that hearing in July. Any suggestion that her health may have affected her evidence at that point was mere speculation. In any event, it is submitted on behalf of the mother that the medical evidence, such as it is, is not of a quality or reliability to justify any significant weight being attached to it. It consists of a brief letter from a GP. There was no letter of instruction in respect of that GP, or certainly no such letter has been produced. The opinion was based on self-report. There was no suggestion of a lack of capacity. There was no application to adjourn the hearing in January and it was considered that special measures would be sufficient.

39.           Ms Reed in her written document acknowledged that the judge did not deal with the detail of the medical evidence filed, but it was not accepted on behalf of the mother that the evidence available to the judge was capable of significantly impacting upon the conclusions reached. The judge was entitled to and did rely on her own impression of Ms Fraser when giving evidence.

Discussion and conclusion

40.           In Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Lewison LJ at paragraph 114 observed that:

" Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them."  

Lewison LJ then listed the cases, all from the House of Lords or Supreme Court, including Piglowski (supra) in which this principle has been explored. He continued:

" The reasons for this approach are many. They include

i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii) The trial is not a dress rehearsal. It is the first and last night of the show.

iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."

41.           These observations are relevant to all those - judges, lawyers and parties - involved in any appeal when an attempt is made to challenge factual findings. It seems to me they are particularly relevant to this appeal. The factual enquiry which District Judge Exton was conducting arose out of events within the proceedings themselves. The core questions were: (1) Had Ms Fraser altered the records? (2) If so why? (3) Had she lied about those actions? The judge had ordered disclosure of the records. Ms Fraser had, as is unchallenged, altered them prior to disclosure. At the hearing on 13 and 14 July, Ms Fraser had given evidence about what she had done. In my judgment, District Judge Exton was uniquely placed to evaluate these events and it would be extremely difficult for any appellate court to interfere with her findings.

42.           Perhaps for this reason, the focus of the attack on her judgment has been on the process by which she reached her findings. Prominent among these challenges is the complaint that the judge structured her judgment and analysis around the schedule of findings prepared on behalf of the mother, rather than the so-called three issue framework set out in the recital to 16 November case management order. It is clear, however, that the focus of her enquiry was on the various allegations made in the schedules prepared by the mother's counsel. I cannot see any basis for a complaint that Ms Fraser was in any way put at a disadvantage. To my mind, Miss Skellorn's note of her oral submissions clearly demonstrate that she addressed the judge on the schedule.

43.           Next it is said that the judgment is linear and not holistic an allusion, I assume, to the criticisms of judgments made in a different context by the Court of Appeal in the series of cases culminating in the decision in Re B-S [2013] EWCA Civ 1146. But, as Miss Judd demonstrated in oral submissions, there is in fact a logic and structure in the judgment which it is not surprising because it follows the logic and structure of Ms Reed's schedule of findings. The schedule and the findings start with the specific factual allegations that Ms Fraser altered records, then proceed to address Ms Fraser's untruthful evidence about those alterations, then the question of motive and finally conclusions about Ms Fraser's conduct. It is, of course, right that a judge has to consider each piece of evidence in the context of all the other evidence, but in analysing and explaining her reasoning, the judge has to start somewhere, and to my mind, there is nothing inherently wrong with District Judge Exton's approach. I agree with Miss Judd that the logical place to start was with the December 2014 log. To my mind, it is entirely understandable that the District Judge followed the carefully-crafted structure of Ms Reed's schedule. In any event, at various points in the judgment, the judge did cross-check the evidence against other evidence. All in all, the judge's familiarity with issues in this case, because of the way in which they arose, put her in the best position to determine how to conduct this analysis.

44.           Then it is said that the judge failed to address a number of submissions made by Miss Skellorn in closing submissions. I hope I was not being unfair to Miss Skellorn when I observed in the course of argument that every advocate has the experience of a judge not addressing every point put in submissions. I have looked very carefully at Miss Skellorn's own note of what she said and I do not consider that the judge's failure to address some of those issues invalidates her ultimate key conclusion that she did not believe Ms Fraser's evidence about what she could remember about editing the notes. In the additional comments added by the judge in response to the request for clarification quoted above, the judge expressly stated that she had taken account of the intervenor's oral submissions but concluded that those submissions did not alter her findings. It is true that she does not particularise these submissions, and explain why she discounts them, but in my view, her judgment plainly meets the test laid down in English v Emery Reimbold. I can see clearly the decision she came to and how and why she reached it. I have no doubt that the judge did consider all the submissions made by Miss Skellorn, as she said she did.

45.           Much emphasis was placed on the judge's treatment of the medical issues. Complaint is made of the fact that it was not addressed at all until after the request for clarification was made and then it was only dealt with inadequately. The key issue, however, was the evidence given by Ms Fraser in July. On this point, the judge made express findings earlier in her judgment in a passage that appears in both the original draft sent out for comment and in the final version in response to the request for clarification:

"She accepts that she denied making the edits during cross-examination. This was, she thinks, because she was being showered with questions that were accusing her of having falsified information and it was "out of the blue" that someone would interpret amending the case notes in that way. She did not think she had falsified anything. She states that she did not lie intentionally. She says that she should have asked for a short break or found some way of slowing it down and explaining that there was no sinister intent or falsification involved. She was very shocked at the suggestions that were being put to her and this affected how she responded.

I hope given my 16 years of experience as a district judge that I would be sensitive and conscious of a witness who was in some distress. This was not the impression I had of Linda Fraser when she gave her evidence at the July 2015 final hearing. As I have said earlier, she was absolutely adamant that she had not edited the notes. I have highlighted in my notebook the phrase she used, namely 'I did not edit those notes'. I asked her why she'd gone through the notes on a 'quality assurance' basis and, although I have noted no answer to that question in my notebook, the transcript indicates she responded as follows, 'In terms of sending them off, I wanted to make sure that everything was there and correct to be sent off'. Again, in my view, this was too much of a coincidence. She could have reflected or asked for a break. The note was only altered a few days before the final hearing, the afternoon following the hearing when I ordered disclosure. She also made significant alterations. It beggars belief, in my view, that she could not remember that she could not remember that she had altered that note."

46.           In this passage, the judge demonstrates to my mind that she was fully aware of the argument that Ms Fraser's health or stress or destress may have affected her evidence and her recall. District Judge Exton drew on her experience in assessing witnesses in rejecting this suggestion. To my mind, this is a paradigm example of how it is the trial judge who is best able to carry out the evaluation of evidence in reaching findings. The judge found no reason to think that Ms Fraser's powers of recall were affected in any way, particularly when the events she was being asked to recall occurred only eleven days previously.

47.           In short, I see no prospect of any appellate court concluding that District Judge Exton was wrong. Her finding that Ms Fraser had altered the records was unchallenged. Her finding that she did not believe Ms Fraser's evidence that she could not remember what had happened is unassailable. The conclusion that she drew as to motive was entirely within her discretion. I am satisfied that, in recording the conclusions that she had done, that she had taken into account all Miss Skellorn's submissions, as she said she did. The District Judge concluded that her findings illustrated the points made by Ms Reed in her document: a negative attitude towards the mother; a disregard of the importance of contemporaneous records and evidential probity; a willingness to manufacture, manipulate or distort evidence after the fact; a contempt for the court process and in the face of the court; a disregard for professional colleagues, a failure to adhere to professional standards, and dishonesty. She did not explain her reasons for accepting this characterisation of Ms Fraser's actions, merely recording that she agreed with the mother's case, but her rationale is, to my mind, manifestly clear from the preceding paragraphs of her judgment.

48.           In my judgment, there is no real prospect of an appellate court concluding that the judge was wrong or unfair. Permission to appeal is therefore refused.

- - - - - -