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Court of Appeal gives important judgment about witnesses’ rights to appeal in family proceedings

Witnesses subject of adverse judicial findings may challenge judge’s findings on appeal

The Court of Appeal has delivered an important judgment concerning the rights of witnesses in family proceedings to challenge adverse judicial findings.

In Re W (A Child) [2016] EWCA Civ 1140 the Court of Appeal – comprising the President of the Family Division, McFarlane LJ and Christopher Clarke LJ – considered whether a witness in family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, can challenge the judge's findings on appeal; and, if so, on what basis and, if a breach of Article 8 is found, what the appropriate remedy is.

The judgment at the centre of the appeal relates entirely to fact-finding in relation to allegations of sexual abuse made with respect to a number of family members by 'C' an older sibling of the children who were the subject of the proceedings. In addition to the children's parents and the children themselves, two male family members had been joined as parties for the fact-finding part of the proceedings as C had made specific allegations of sexual abuse against them. After a lengthy hearing and a very full analysis of all of the relevant material the judge found that none of C's allegations were proved. In addition to dismissing the sexual abuse allegations, the judge felt driven to include in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker (referred to in the Court of Appeal judgment as 'SW') and an individual police officer (referred to as 'PO'), both of whom the judge proposed to name.

Permission to appeal was granted to the local authority, SW and PO.

SW's and PO's complaint related to the judge's finding that they, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. He also found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complained that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, will be made public.

One month after the hearing at which the judge had orally delivered a 'bullet-point judgment', the first full draft judgment was circulated and the court held a directions hearing some days later. Having heard submissions on behalf of the parties and the police, the judge directed that the draft judgment should be disclosed to those who were the subject of adverse criticism in order for them to prepare submissions and be represented at the next hearing some ten weeks later; at the next hearing PO and three other professionals were represented. SW was present but un-represented. The court heard submissions from or on behalf of each of those individuals; an amended draft judgment (which is the current draft) was then circulated some two months later and it was accompanied by a separate judgment given at that time purporting to explain the changes that the judge had made to the draft; at a further hearing the court heard submissions as to the issues of identification of professional witnesses and anonymisation of the judgment, which was followed by a reserved judgment in which the judge ruled that some professionals would be anonymous but that SW and PO would be named in the public version of the judgment.

McFarlane LJ, giving the judgment of the court, held that once SW and PO were invited to make submissions on the judgment, each achieved 'intervenor' status and became a 'party' to the proceedings sufficient to afford them a right of appeal under MFPA 1984, s 31K. The question of party status was not an issue with respect to the local authority.

Having considered the authorities and the impact of the ECHR, McFarlane LJ concluded:

"[I]t is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication."

As for the impact upon family law cases more generally, McFarlane LJ said:

"I regard the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances. The occasions on which such circumstances may occur, or develop during proceedings, will, I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors:

a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses, where

b) such findings have played no part in the case presented by any party during the proceedings, and where

c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment."

"Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness' fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing."

The court decided that there was a wholesale failure to achieve a fair trial in relation to the matters that the judge went on to find proved against the local authority, SW and PO and that those parts of the judge's judgment which recorded those matters must be set aside on the basis that they are to have no further validity and are to be regarded as if they had never been made.

Charles Geekie QC and Gemma Kelly, both of 1 Garden Court Family Law Chambers, represented the local authority. Zimran Samuel of Doughty Street Chambers acted pro bono for SW. Ben Brandon and Emma Collins, both of Three Raymond Buildings (instructed by Slater and Gordon LLP), represented PO. Frank Feehan QC of 1 King's Bench Walk (instructed by Philcox Gray Solicitors) for the respondent family member.

For the judgment, click here.