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S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8

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Background

The case concerned two children: S (6) and J (5).  S's parents were X and Y, and J's mother was A.  Over a weekend in January 2020 J spent some time in the care of X and Y, and the balance of time with A.  When injuries were discovered on J, those in the pool of possible perpetrators were therefore A, X and Y.  Care proceedings had been started in relation to S because her parents were in the pool of possible perpetrators, and A had been joined as an intervenor to those care proceedings.  S moved to live with her aunt.

In January and February 2021 a fact-finding hearing took place.  Other findings about A's misuse of ketamine were also sought.  A argued that findings about her care of J which were not relevant to the care proceedings relating to S should not have been pursued in S's care proceedings, but the court rejected that argument and considered all allegations. 

The circuit judge found that most of J's injuries were accidental, but that some had been inflicted by A.  She also found that A had deliberately attempted to establish a finding against X and Y despite knowing she had inflicted those injuries, that A was misusing ketamine at a higher level than she had admitted, and that she had deliberately attempted to avoid this being discovered.  Separate proceedings were then issued in relation to J and his older brother, relying on those findings, although the children remained at home under interim supervision orders.

Grounds of appeal

A appealed against the findings in S's proceedings, relying on six grounds:

(1) Procedural irregularity/unfairness as findings were made beyond those pleaded, and that the findings were made in proceedings not relating to her child, without relevant social work evidence available;

(2) No reasoned judgment was given for departing from the expert's view;

(3) Erring in applying the facts;

(4) Speculating to an impermissible extent;

(5) Making contradictory findings which could not reasonably be explained or justified;

(6) Failing to draw proper adverse inferences from Y's failure to attend to give evidence.

Permission was granted on grounds 2-6, but refused on ground 1.

A little under 2 weeks prior to the appeal hearing, A applied for permission to amend the grounds of appeal, to rely on a new ground based on procedural irregularity/unfairness: in the care proceedings now under way in relation to J, a psychologist had assessed that A might be assisted by an intermediary, and a Communincourt assessment was due to take place: it therefore appeared that A might require special measures/participation directions, and none had been in place during the fact-finding hearing.

Evidence in support of the appeal

A had been the subject of two psychological assessments:

(1) A cognitive assessment which concluded that A did not require special measures, but would benefit from regular breaks to have information explained to her, and to have important information explained more than once. Her understanding should be checked by asking her to explain things back in her own words.

(2) The second psychological assessment concluded that A's strength is perceptual reasoning rather than verbal reasoning and she will need support with written documents.  The psychologist questioned if she had dyslexia.  A was identified as possibly requiring an advocate or intermediary for formal meetings, interviews and assessments.

A was then assessed by Communincourt, who recommended an intermediary as A had difficulties with:

- Processing long sentences

- Understanding court specific terminology

- Understanding and responding to complex grammatical structures

- Understanding complex vocabulary

- Processing simple verbal information

- Remembering key dates

- Often confusing detail

A had given evidence alone from a room in her solicitor's office during the fact-finding in S's proceedings.  Whilst her barrister had had some concerns that A had misunderstood some of the longer, more complex questions, A's legal team had not been concerned that she could not give instructions.  Relying on the new psychological evidence, it was submitted that A had hidden cognitive difficulties.  Had those cognitive difficulties been known about, special measures should have been put in place prior to the fact-finding.

Decision on appeal

Giving the judgment of the court, Baker LJ allowed the appeal on the revised ground, and remitted the case for directions prior to any re-hearing.

It was acknowledged (at para [42]) that not every failure to comply with FPR Part 3A and PD3AA will lead to a successful appeal: the appellate court must identify:

(1) Has there been a serious procedural or other irregularity; and

(2) If so, whether the decision was unjust as a result of that irregularity

In this case, the judge's assessment of A's character and plausibility were central to the judge's findings, and the new assessments (presumably in particular the fact that A often confuses detail and can struggle to remember key dates) had an "obvious bearing on the demeanour and credibility of the appellant" (para 44).  In those circumstances, there were "strong reasons to suspect that A did not have a fair opportunity to present her case", such that A was permitted to amend the grounds of appeal, and the appeal was allowed on the revised ground.

Of interest, although obiter, are the closing comments (paras 48 and 49): Baker LJ noted that S is settled in her family's care, and that the parenting assessment of A was almost completed, such that it might be that a re-hearing was neither proportionate nor in any of the children's best interests.  However, the Court of Appeal was not in a position to determine that issue.  A particular difficulty was that, whilst this appeal was of course brought by A, it did not relate to A's children. The decision about both sets of proceedings, and whether any re-hearing should take place was to be taken by the local liaison judge.

Case summary by Julia Belyavin, Barrister, St John's Chambers

For full case, please see BAILII