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I (Children) [2019] EWCA Civ 898

Appeal in care proceedings, allowed by consent. Reference made and guidance given in relation to ‘clarification’ of judgments and fresh evidence.

This is an appeal following delivery of a judgment in a finding of fact hearing in care proceedings concerning two unexplained skull fractures sustained by a baby ('A'). The Local Authority ('LA') sought specific findings, namely that each of the injuries were inflicted by A's mother.

In relation to the first, left hand side, fracture the judge concluded that the fracture was an older injury, not a birth injury and which, on the balance of probability, occurred whilst the child was in her mother's care. The trial judge said that 'after much consideration I have concluded that beyond that I will be entering into the realms of speculation as to what happened.'

In relation to the second fracture, the trial judge concluded that '...all this set the context for a sudden loss of control resulting in an injury to A inflicted or caused by an anxious, stressed mother. Alternatively, and there is some evidence for this from M herself in her police interview and in the children's reported conversations in the car [that] she left A unattended and was downstairs at the time.' (Para 133)

The mother filed six grounds of appeal. Permission was refused in relation to a number of those grounds, two were not pursued by mother, leaving the only ground as: 'In reaching the conclusion that there are two potential explanations for the injury the learned judge has failed to make a determination of facts.'

All parties agreed that the appeal must be allowed. The issue of the appeal court was the proper order to make upon the appeal being allowed.
Mother submitted that para 133 should be amended to add at the end of the paragraph: 'Consequently, I am unable to reach a clear finding as to what caused the right-hand fracture and it remains unexplained.' In doing so Mother accepted that this would have the effect that any risk assessment of her would proceed on the basis that each of the fractures sustained by her baby whilst in her sole care are unexplained. The LA and the Guardian submitted that there should be a re-hearing before a different judge to determine how the right sided injuries were caused, that being essential in order to lead to a fair and comprehensive assessment of the mother as a future carer for the children.

The events surrounding the handing down of judgment are set out in the appeal judgment. In summary:

(A) Throughout the proceedings and at trial mother's case had been that A had fallen off the bed whilst she was in the room.

(B) Before the court was also a statement from the social worker, who described a conversation which took place between A's sister and half brother. The younger child described her mother as being in the room when A sustained the second injury; the elder brother said that he did not see him fall and their mother had been downstairs when it had happened. The social worker's evidence was that the elder child had said the younger child was to stop lying. Following the conclusion of the trial the elder child told an adult at his school that he had been in the room when the child fell and that he feared that he had hurt the child.

(C) Mother then filed an unsolicited statement, on 20 February, in which she changed her account to suggest that she had gone downstairs and heard a long bang and ran upstairs to the rescue.

(D) A draft judgment was circulated on 14 February. Paragraph 133 read differently at that stage (see para 14).

(E) Mother's representative emailed the court with observations and requests for 'clarification' (see para 15). 

(F) At the hearing listed for the handing down of judgment Mother's representative invited the Court to refrain from handing down judgment and hear further evidence from mother. This was refused; there was no appeal in relation to this case management decision.

(G) Judgment was handed down, with paragraph 133 as above. This left two inconsistent findings.

Moylan LJ granted permission to appeal, and gave directions that the parties should invite the trial judge to provide clarification of the findings. The response to the request is set out at paragraph 20. The trial judge said, unequivocally, that the right sided head injury had been inflicted by the mother. This left unresolved the fact that, 'on the face of it, there is fresh evidence, untested evidence, ostensibly in support of the original, alternative, explanations suggested by the judge in paragraph 133, namely of the fracture resulting indirectly from a negligent action on the part of the mother as a consequence of having left A unsupervised with C whilst she went downstairs to make up a bottle.' (para 21)

The appeal court concluded that, notwithstanding the substantial delay, a complete re-hearing before a different judge is inevitable.

Two further areas of concern were thrown up:

(A) the extent of clarification of the judgment on behalf of the mother (paras 25-41); and

(B) The filing of the mother's statement between receipt of the draft judgment and handing down of the judgment. (paras 42-45)

As to clarification of the judgment, the relevant jurisprudence is as follows: English v Emery Reimbold and Strike Ltd [2002] EWCA Civ 605, Egan v Motor Services (Bath) Limited Note [2007] EWCA Civ 1002, Re A and another (Children) (Judgment: Adequacy of Reasoning) [2012] 1 WLR 595 (the Practice Note), Re M [2009] 1 FLR 117, R (Mohamed) v Foreign Secretary (No 2)(CA) [2010] 3 WLR 554 (Mohamed), Re C (Placement Order: Appeal) [2014] EWCA Civ 70. Reference is made to FPR PD30A para 4.6, in relation to 'material omissions' from a judgment of the lower court.

King LJ notes that it has become, as the Court of Appeal understands, 'almost routine' for a draft judgment to be followed up with extensive request for 'clarification' which 'in many cases can be regarded as nothing other than an attempt to reargue the case or, as here, water down the judge's judgment.' King LJ further notes that, provided the term 'material omission' found in paragraph 4.6 of FPR PD30A is taken to embrace the totality of the matters included in paragraph 16 of Munby LJ's Practice Note in Re A, then she would agree and endorse the observations of Mostyn J in WM v HM [2017] EWFD 25 at para 39.

In conclusion Her Ladyship states:

'It is neither necessary nor appropriate for this court to seek to identify any bright line or to provide guidelines as to the limits of the appropriate nature or extent of clarification which may properly be sought in either children or financial remedy cases. I would merely remind practitioners that receiving a judge's draft judgment is not an "invitation to treat", nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings. Requests for clarification should not be routine and should only be made in accordance with the Practice Note which I repeat is: "to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process.' (Para 41)

As to mother's statement, King LJ concluded that:

(A) 'Fresh evidence' should never be confused with nor regarded as part of the clarification process.

(B) Immediately fresh, and potentially relevant, evidence is brought to the attention of a party, it is their duty to inform and provide the evidence to all the other parties in the case. Any statements subsequently drafted and upon which a party wishes to rely must be served on all the parties and absent express consent in writing, should not be sent to the judge.

(C) In the event that a party wishes to make an application that the judge should delay the handing down of judgment in order to consider whether, and if so to what extent, there should be further evidence in the case, proper notice should be given to both the judge and the parties in order to enable the judge to have a directions hearing and to hear submissions from all sides.

(D) It is for the judge then to determine, using his or her case management powers what, if any, steps should be taken to consider the fresh evidence. Although in this case a re-trial was ordered, such an outcome is by no means inevitable, and indeed might be regarded as unlikely, where an alleged perpetrating parent files a statement by which they completely change their story between receipt of a draft judgment and the handing down of the same judgment.

The appeal was allowed by consent and remitted for retrial.

Summary by Emily Ward, Barrister, Broadway House Chambers.

Full judgement on BAILII: I (Children) [2019] EWCA Civ 898