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Lawyers, Legal Language and Fact-finding Hearings under Part IV of the Children Act 1989

David Bedingfield, barrister of 4 Paper Buildings, discusses what lessons can be learned from the Court of Appeal's judgment in R (Children) [2018] EWCA Civ 198.

David Bedingfield, barrister, 4 Paper Buildings


















David Bedingfield
, barrister, 4 Paper Buildings

What do lawyers do when they hear a story? Inevitably, lawyers transpose narratives into legal paradigms. Consider: two people are walking down a busy street, talking and laughing and enjoying life, and they both ignore the fact the traffic light has changed colour. They step out into Oxford Street, just as the Number 3 bus belches once and moves forward, clipping one of our friends on the hip and knocking him over.

The lawyer hears this and immediately transposes the narrative into a complex legal problem: Did the driver of the number 3 bus act in a negligent manner?  What do we mean by "negligent?" What is the standard of care we demand of the driver? Did he breach a duty of care owed to the pedestrians? Did the pedestrian in fact cause his own injury by his own actions? If so, were the injuries solely caused by his own negligence, or should we seek to split responsibility for the injuries between the driver and the pedestrian? And of course there is legislation: Has Parliament spoken regarding the duty of care owed? Does it set down guidelines?

Lawyers often take what would appear to be a relatively simple story and turn it into a set of difficult legal problems, asking the finder of fact (whether judge or jury) to answer questions and settle disputes that arise from the narrative.  Many times the "facts" underlying the narrative are difficult to determine, in particular when the judge or jury has to determine what happened after hearing stories from the witnesses involved that clearly cannot all be correct. Someone is not telling the truth. How do we go about resolving these questions of fact?

Factual disputes in cases involving the breakdown of family units amplify this legal difficulty of fact finding. Two people have been engaged in an intimate relationship over a period of years that has now turned both into enemy combatants, each inevitably seeing every dispute from his or her own point of view and emotional bias. Two problems in particular arise: How does a finder of fact sort out who is telling the truth about what happened? Having done that, how does the judge set out those reasons and those conclusions? In other words, how does the judge explain in his or her judgment why the facts that are found either do or do not provide a reason to afford the claimant the relief that is sought? How does the judge relate the facts to the law and tell us who won, who lost?

Very little has been written about how jurors and judges actually find facts.1  But acres of rain forest have perished in the last century as professors and lawyers argue about how best to go about the fiendishly difficult exercise of giving judgment. Judge Richard Posner, formerly the chief judge sitting on the US Federal Court's 7th Circuit in Chicago, argues that there are essentially two warring camps: the formalists versus the realists. The formalists are lawyers first, and they inevitably take narratives and seek to tweak from them the answers to incredibly complex questions.2 The formalist legal judgment is self-consciously professional and aimed at convincing lawyers (and appellate judges); it is intentionally filled with jargon, again because that serves to convince the professional audience at which the opinion is aimed; and it is (or would appear to be) technical in nature, and therefore apparently logical and rigorous. The point is to make the conclusions appear inevitable, and the judgment therefore authoritative. 

The realists, on the other hand, seek to address both lay and professional audiences with a candid assessment of what has occurred. Legal jargon in this view is unhelpful. The language is direct and straightforward.  Doubts are admitted. The fact-finder must give content to ambiguous legal tests, but the judge does so in language easily understood by a lay audience: What acts are reasonable in all the circumstances of the case? What behaviour is unreasonable, disproportionate, harmful? And, of course, what behaviour is callous, cruel, evil?

The law professor Dr. William Popkin explores this in his text book on judicial opinions, Evolution of the Judicial Opinion: Institutional and Individual Styles (New York University Press 2007). Professor Popkin charts the rise of what he calls the impersonal voice judgment (what Judge Posner would call formalist judgments), contrasting this with the personal voice judicial opinions of the US Supreme Court Justice Oliver Wendell Holmes. Professor Popkin puts it like this:

"[Holmes's] language is direct, unadorned, and without artifice, neither magisterial nor professional. He uses language shared by a community that includes both the judicial author and the public audience."3

Judge Posner, long an admirer of Holmes's opinion writing and approach to the judge's task, agrees with Professor Popkin's assessment of judicial opinion writing, and both Posner and Popkin give examples of just how good a writer Holmes was.  Judge Posner parts ways with Holmes, however, in one crucial aspect. Holmes's voice in these opinions is unquestionably authoritative, as if delivered from on high and after due deliberation with the gods of justice. Judge Posner's opinions, as Professor Popkin notes, are different. Judge Posner instead adopts what Popkin calls an "exploratory" tone.

"A judge who adopts an exploratory tone shares with the audience the difficulty of reaching a decision, rather than speaking down to the reader by adopting an authoritative tone. There are three ways in which Posner's opinions are exploratory. The first is that he admits doubts about how to find the right answer. The second is that the opinion reads as though the author is thinking out loud about how to work through the issues—often speculating about questions that turn out not to be essential to dispose of the case but that are part of the judge's thought process. The third way relates to the substantive criteria used to reach a decision. Posner rejects clear-sounding rules for deciding a case, such as textualism in statutory interpretation. Instead, he prefers more fuzzy standards (often the purpose of the underlying rule) or rules-with-exceptions, except when there are good pragmatic reasons for adopting a simple-to-apply rule."4 

It is right that Popkin and Posner are for the most part discussing appellate opinions, in particular cases where unelected judges are asked to decide whether state actors have infringed the constitutional or human rights of claimants. Appellate judges deciding these cases inevitably must justify highly intuitive decisions about, for example, privacy rights and abortion, or racial justice and affirmative action, in the legal language of rights. They do so in an increasingly formalistic manner, Popkin argues, because to do otherwise would reveal just how much personal preference and choice play in these decisions.

Popkin's analysis, however, applies as well to judges who sit in bench trials and then must give a detailed judgment, setting out reasons for the findings of fact and conclusions reached based on those findings.  Judges are faced with the same task identified by Professor Popkin. They must implement the dual external and internal goals of preserving judicial authority while giving reasons for making human assessments such as who is lying, why they are lying and whether those lies should have an impact on the ultimate decision the judge must make. Judges know that the public projection of judicial authority exists in tension with the professional reality that deciding legal disputes, as Professor Popkins notes, is often a messy task, fraught with conflict and uncertainty. For these reasons, judges (and as a recorder, I plead guilty to this) often provide highly formalist judgments in fact finding cases. Legal tests are set out and facts are then found in a manner that makes the conclusion appear inevitable. Each party's skeleton submissions  set out formalist legal arguments, contending the judge must answer the legal questions that are presented.  Parties often produce complex legal submissions, with lawyers seeking to argue how the judge should force square pegs into sometimes oval shaped legal holes.

Consider the factual scenario facing Mrs. Justice Theis DBE in the curious and tragic case of R (Children) [2018] EWCA Civ 198. On 2 June 2016 the mother of two young children died in the kitchen of their family home of a single fatal knife wound to her neck. There were two people in the kitchen at the time the fatal blow was struck: the mother and her husband. Six months before the incident that ended with her death, the mother had informed her husband that she was having an affair and that she wanted to leave the family home and live with her lover. The mother left, and the father continued to care for the couple's two children. The mother would often return home to see the children, and on 2 June 2016 that is why she was in the family home. The mother and father began to argue with each other, and the mother picked up a knife and slashed out with it. One of the children received a cut on her arm. The father was cut on his head. The father was able to usher the child out of the kitchen. He then struggled with the mother and at some stage gained possession of the knife. 

What happened after this, of course, is a matter of dispute. What all agree happened is that the mother received a single but very substantial wound to her neck. The experts who examined the wounds were unanimously of the view that the wound was caused by a single continuous movement.

The jury in the father's criminal trial had to consider the expert evidence, and had to compare the experts' conclusions with the account of the incident given by the father. The father's solicitors had set out for the experts in the criminal trial an account by the father wherein he stated that the knife he held had gone into the wife's neck, and he then pushed her backwards, causing the knife to slice forward and exit the neck. The experts were unanimous in their view that this account would necessarily involve two planes of motion. The knife wounds, in the view of the experts, did not support this account by the father. Nevertheless, the criminal jury could not be sure that the father was guilty, and after being instructed by the Crown Court Judge regarding the law of self-defence and related principles, they returned a verdict of not guilty.

The father's criminal trial, as is now the norm rather than the exception, had been delayed for several months. The father's trial finally began in May, and the jury acquitted him on 30 May 2017. The trial generated some 1,000 pages of written statements and other documents, and there were hundreds of pages of transcripts of oral evidence given by witnesses in the criminal trial. The local authority had brought care proceedings the day after the incident resulting in the mother's death, and on 26 June 2017, 12 months and 3 weeks after the fatal argument in the family home, the local authority filed and served its threshold allegations within the care proceedings regarding the children. The local authority in that document contended that the father killed the mother and in doing so used unreasonable force, or alternatively, was reckless.

The care proceedings before Theis J began on 17 July, with the expert witnesses scheduled for the second week of the 10-day hearing, beginning on 7 August. All three teams of advocates before Theis J presented skeleton submissions that asked the judge to apply elements of criminal law to reach conclusions regarding the threshold allegations under s.31 of the Children Act 1989. The judge therefore set out in her judgment findings regarding whether the father had acted in self-defence. In that judgment, the court found that "[The father] more likely than not did not act in self-defence. He used unreasonable force and unlawfully killed the mother, most probably due to a loss of control fuelled in large part by his burning resentment of the fact that despite all he had done, the mother maintained her relationship. . . and wanted the marriage to end."5   

The father sought and was granted permission to appeal. As McFarlane LJ sets out in his judgment, the father's pleaded case on appeal continued to use as its framework the criminal law of self-defence. Father's legal team contended the ". . . court has failed to apply the subjective test required and as outlined in R v Williams and R v Outbridge, whereby in assessing the reasonableness of forced used two questions must be asked: a) Was the use of force necessary in the circumstances? b) Was the force used reasonable in the circumstances? It is accepted that there is also a subjective element, namely, whether on the facts as the perpetrator believed them to be, a reasonable person would regard the force used as being excessive."6 

The father's legal team also sought to contend that the trial judge failed to direct herself appropriately regarding "loss of control," which now in criminal trials is governed by provisions of the Coroners and Justice Act 2009. That Act, at s.54, provides that loss of control is now a specific criminal defence to homicide. The application of the defence is enormously complicated.7 

It is right to say that the oral argument of the father's appeal, before McFarlane LJ, Hickinbottom LJ and the Vice President of the Court of Appeals, Lady Justice Gloster, did not go as planned by the advocates. McFarlane LJ apparently immediately flagged up his concern that the parties had wrongly presented the case, both to the trial judge and to the Court of Appeal, as a case that required the trial judge to apply elements of the criminal law. All three legal teams quickly accepted that the trial judge should not have sought to apply the formal legal elements of "self defence" and "loss of control." (It is assumed here that Lady Justice Gloster did not differ during oral argument that it was wrong for the trial judge to have done this, but as we shall see it would appear she changed her mind about this.)

As McFarlane LJ sets out at the beginning of his judgment, the Court took the ". . . unusual step of limiting submission to two central matters in order to determine whether the appeal must succeed in any event on either or both of these points."8  The two points were: the extent to which the family court should import elements of criminal law into a fact-finding determination within care proceedings; and whether the amount of time allowed for preparation of the case was so constricted that the resulting trial was unfair within the terms of Article 6 of the ECHR.

The Article 6 point was not without its interesting twists and turns, not the least of which is the question why the Court of Appeal considered "unfairness" solely as a question under Article 6. It was open to the Court to consider as well whether there is a right either under the common law or simply under a fair reading of the Children Act 1989 that a parent must be given sufficient time to prepare a case in proceedings that may result in the permanent removal of a child from that parent's care. That unfairness would breach the requirement that the Court have as its paramount consideration the best interests of the child. How could that be achieved if the Court unfairly restricted a parent's ability to present his or her case?

In any event, the Court of Appeal made short work of the issue, and all three LJs on the panel agreed that the father's legal team had not been given sufficient time to prepare. The appeal would have been allowed on that point alone.

But the panel believed it right that the Court address the issue of how the trial judge imported into the case elements of criminal law. McFarlane LJ first noted that in fact little has been written by appellate judges regarding the interplay of criminal and family cases. Two judgments, by Butler Sloss P in the Court of Appeal, and by Sedley J in the High Court, were analysed, but neither actually dealt with the narrow issue before this panel.9  Both cases really do little more than set out the obvious: after an acquittal, it is open to a judge in care proceedings to find by a balance of probabilities that in fact the alleged perpetrator committed the acts in question. In neither case did the court address the issue of when a fact-finding hearing should be held after an acquittal in a criminal trial, nor did the court address the issue of whether the judge in family proceedings should borrow concepts and definitions from the criminal law.

McFarlane LJ noted with approval the analysis of Butler-Sloss P and Sedley J regarding the different role of the court in care proceedings. A court hearing an application for a care order under Part IV of the Children Act 1989 is not concerned with establishing civil or criminal liability for acts that were committed; the court is instead seeking to make findings in ". . . the first, but essential, stage in a complex process of child protection through the medium of judicial proceedings." (See para 25 of Butler-Sloss P's judgment in Re U.) 

McFarlane LJ then said this:

"Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the family court. Given the wider range of evidence that is admissible in family proceedings, and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of 'murder' or 'manslaughter' or 'unlawful killing'. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told it for example, the police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all to clear." (See judgment of McFarlane LJ, at para 65.) 

McFarlane LJ was also concerned that the Family Court would become bogged down unnecessarily in legal technicality if criminal and civil concepts were brought into play. It is also likely, he mused, that the judges chosen to sit on care cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.

McFarlane LJ, joined by Hickenbottom LJ, believed it was unarguable that applying "formalist" legal rules within care proceedings would lead the trial judge into error. Lord Justice McFarlane, at paragraph 82 of his judgment, set out four points of guidance:

a) The focus and purpose of a fact finding investigation in the context of a case involving the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court;

b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child's future with the court's eyes open to such risks as the factual determination may have established;

c) Criminal law concepts, such as the elements needed to establish guilty of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court;

d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts.

McFarlane LJ then reaffirmed principles set out in Practice Direction FPR 2010 PD 12J, a direction aimed primarily at private law contact/residence disputes, but according to McFarlane LJ ". . . is of more general application to all proceedings relating to the welfare of children where 'domestic abuse' or other potentially criminal activity is alleged." (Para 84.) The Family Court should only embark upon a fact-finding process ". . . when it is necessary and proportionate to do so." (Para 84, 86.) "The decision regarding whether a fact-finding hearing is necessary and is for the trial judge, and should be determined on a case by case basis. The trial judge must have regard in care proceedings to the overarching purpose of public law proceedings. The trial judge must ask herself: 1) will the fact-finding establish whether the s31 threshold criteria have been met? 2) Is the fact-finding necessary to determine the future plan for the child's care?" (See para 86.)

But McFarlane LJ appeared to have no doubt that a fact-finding was likely necessary in this case, where one parent died at the hands of the other and the jury in the ensuing criminal case could not be sure that the alleged perpetrator in fact was guilty of a crime arising from the  death of the victim. In his view it is likely to be important that children know whether or not the surviving parent's actions were "reasonable" in relation to the circumstances of the death. He cited Wall LJ's dicta in the case of Re K (Non-accidental Injuries; Perpetrator: New Evidence) [2004] EWCA Civ 1181, [2005] 1 FLR 285, at para 56: Children have the right to know the truth about who injured them when they were children and why.

McFarlane LJ then issued a plea for less formalism and more realism, though of course he did not use those terms. He put it like this:

"Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example 'self-defence', or 'reasonable force' or 'the loss of self-control'. Phrases such as 'inappropriate force' or 'proportionate force' may reflect the judge's findings in a particular case, and avoid the risk that the judge's words may be misunderstood as expressing a finding based directly upon criminal law principles." (See para 90.)

Lord Justice Hickenbottom agreed with McFarlane LJ and Gloster LJ that the appeal must be allowed and the matter remitted to the Family Court for a re-hearing. But Hickenbottom LJ noted two significant areas of disagreement between his two fellow members of the panel, and for Hickenbottom LJ it was clear that McFarlane LJ's position was to be preferred on both.

The first issue is the extent to which the court is required to make findings as to the circumstances of a killing such as occurred in this case, and as to the reasonableness of the conduct of the surviving parent.10 In Hickenbottom LJ's view, it would be unhelpful for the Court of Appeal to give specific guidance on the detailed approach to fact-finding hearings.

The second issue, of course, is the use of criminal law concepts in family proceedings. In the view of both Hickenbottom LJ and McFarlane LJ, those concepts only made it more difficult for the parties and those relying on the judgment to understand what had occurred.

Gloster LJ disagreed on both counts. For Gloster LJ, the use of conepts borrowed from the criminal law is simplyunavoidable, if the Family Court does indeed see the need for a fact-finding hearing after an acquittal in the criminal trial.

But Gloster LJ queried whether this fact-finding exercise in fact should have been conducted. In her view, McFarlane LJ was simply wrong when he stated that the importance to the children of knowing whether the surviving parent's actions were reasonable meant that a fact-finding hearing in cases where one parent killed the other is likely to be seen as necessary and proportionate. Gloster LJ put it like this:

"I can see that there may well be a need for the court to know more generally, in relation to the circumstances of the death, whether, for example, the father and or the mother had been taking drugs or drinking, or there had a previous history of violence or domestic abuse, or the parents had allowed the children to be present when they were arguing. All those matters may inform the court's view about the checklist of welfare factors under s 1(3) of the Children Act 1989.  However, I do not agree with McFarlane LJ's apparent assumption (emphasis in original) that it will be, or is likely to be, necessary in this case for the court to determine, and the children to know the answer to, the killing issues, in circumstances where the father has already been acquitted, following a full-scale criminal trial at which he gave evidence on oath and experts also gave evidence." (See Para 115.)

Gloster LJ noted that the UK Supreme Court, in S-B (Children) [2009] UKSC 17, pointed out that there is no obligation on a trial judge in care proceedings to identify the perpetrator in a case where there are several possible perpetrators. Gloster LJ then set out five sub-issues she contends must be addressed before a judge hearing a case such as the one before the Court embarks on a fact-finding hearing.11

i) Whether there is sufficient specific psychiatric or other evidence to support any contention by the local authority or the guardian that the children "need to know" the view reached by a family judge on the killing issues, notwithstanding the passage of time and the prior acquittal of their father in the criminal courts;

ii) Whether the concern to protect the children from any possible future violent conduct or emotional harm that might be perpetrated by the father requires the determination of the killing issues, notwithstanding the fact that the children had been in his care for some considerable time prior to the death of their mother apparently without mishap;

iii) Whether, given the fact that the appellant has already given extensive evidence, and been cross examined and acquitted in the criminal trial, any subsequent determination of the killing issues in the context of family welfare proceedings which necessarily revisits the same (and possible additional) evidence a considerable time after the relevant events could afford him or his children a fair trial under Article 6 of their rights to family life; in this context I note the potential for unfairness in a cross examination of the alleged perpetrator based on the transcript of his evidence in the criminal trial;

iv) Whether it is proportionate in all the circumstances effectively to retry or try the alleged perpetrator in relation to the killing issues;

v) Whether such proceedings would, in context, be an abuse of process or achieve little other than a second judicial, as opposed to a jury, view of the evidence.

All of that would, if implemented, likely lead more trial judges to conclude that in all of the circumstances it would be wrong to force the alleged perpetrator in effect to be tried twice, even if it is open to the Family Court to hear all of the evidence again.

It would be difficult to argue there's no force in what Gloster LJ says: Surely it is right that courts should consider carefully whether there is already available sufficient evidence for the court to make decisions regarding whether a parent can care for a child, and McFarlane LJ and Hickenbottom LJ would not disagree with that. But as Hickenbottom LJ notes, the tests supplied by Lady Justice Gloster would fetter the discretion of the trial judge with regard to whether there should be a full re-hearing of the evidence by the Family Court. Gloster LJ also at least implies that in her view a re-trial risks a breach of rights protected by Article 6. McFarlane LJ and Hickenbottom LJ expressed no concerns that forcing the alleged perpetrator to give evidence twice posed any problems under Article 6, nor did they indicate any concerns about whether it would be proportionate.

What is perhaps more interesting, however, is Gloster LJ's view regarding the use of criminal law concepts in family proceedings. For Gloster LJ, this is inevitable, given that the family judge is giving a legal judgment that will have real consequences for the parties. Gloster LJ sets out the position of the formalist judge at para 121:

"I see real difficulty in a judge being able to determine whether the father's conduct was "reasonable" – i.e whether he is to be criticised in a family welfare context for reacting with violence to the mother's violent knife attack upon him, and upon their child—without regard to , or applying, criminal law concepts of self defence, reasonable force, and loss of control, if the judge is indeed required to decide the issue of whether father used "inappropriate force" or "proportionate force" (see para 90 of McFarlane LJ's judgment), or whether his conduct was "unreasonable" in relation to the circumstances of the death itself, then I ask rhetorically by what other standards can the judge evaluate the appellant's past conduct and any potential risk that might give rise to in the future, other than by the relevant criminal standards? What other guide will he or she have to determine the issue as to whether the father's killing of the mother was blameworthy, unreasonable or inappropriate"?

Neither McFarlane LJ nor Hickenbottom LJ believed it right that either should reply to this. McFarlane LJ was troubled that no advocate had been asked to comment on this aspect of Gloster LJ's judgment. Hickenbottom LJ's view is this: The purpose of a fact finding hearing in cases under Part IV of the Children Act 1989 is simply to find facts. The use of those facts is then a matter of discretion for the trial judge, seeking to apply the welfare checklist under s1(3) of the CA 1989 in order to determine what order, if any, is in the best interests of the subject child.

The prediction here is that the views of McFarlane LJ and  Hickenbottom LJ will prevail.12  Gloster LJ, it is contended, is seeking to require judges to give formalist judgments using legal principles (or in other words, legal jargon) that have specific meanings. She is asking advocates and judges to wrestle with these concepts and make each fact situation fit within that legal framework. It works to exclude the lay parties from any understanding of what is occurring. It serves to confuse the issue before the Judge, which should be focused on finding facts sufficient to enable the judge to reach a conclusion about the best interests of the child, and nothing more. The English language is sufficiently precise to permit judges to set out with some specificity what more likely than not has occurred in any fact situation, without the requirement that those facts then be placed in legal categories. There is no need to rule that Perpetrator A's actions should be classified as "self defence," and Perpetrator B's actions should be classified as an "unlawful killing."

These issues, however, are not likely to go away The Court of Appeal, or the Supreme Court, will eventually have to wrestle with the different views expressed by the Justices of Appeal in this tragic case.
_____________________________

Footnotes:
[1]   Probably the best short essay  about how judges find facts is by the former Master of the Rolls,  Lord Bingham of Cornhill, in 1985. See The Business of Judging: Selected Essays and Speeches of Lord Bingham (Oxford Univ Press 2002).
[2]   See Posner, Reflections on Judging (Harvard Univ Press 2013), pp 248-49.
[3]   Popkin, p 159.
[4]   Popkin, p 161-62.
[5]   See para 25 of McFarlane LJ's judgment.
[6]   See para 27 of McFarlane LJ's judgment.
[7]   Loss of self-control is established only if a "qualifying trigger" is present, and a person of similar characteristics to the defendant might have reacted in the same or in a similar way as the defendant acted. There are detailed factors set out to help the jury determine whether a qualifying trigger is present. The legislation is a classic example of the formalist legal mind at work. How juries are to make sense of s.54 of the Coroners and Justice Act 2009 is a mystery to this writer, but that is a subject for a criminal specialist and for another day.
[8]   McFarlane LJ, at para 2 and 3.
[9]   See A Local Authority v S.W and T [2004] EWHC 1270 Fam (Hedley J); and Re U (Serious Injury: Standard of Proof) [2004] EWCA CIv 567.
[10]  Gloster LJ describes the issues surrounding the incident that resulted in the wife's death as "the killing issues". These issues are: 1) whether the father used unreasonable force; 2) whether the stabbing was deliberate or reckless; 3) whether the stabbing was pre meditated. See para 114.
[11]  McFarlane LJ declined to respond to Gloster LJ's judgment, though of course he had before him a draft of the judgment. In his view one of the defects of Gloster LJ's judgment is that none of what she concludes had been put to the advocates during oral hearing.
[12]  See in this regard Lady Hale's repeated calls for judgments in cases involving children to be understood by both lay audiences and professionals, and be "personalised", with the children who are the subject of the judgments being given names rather than being referred to as "X" or "Y" See, for example, her remarks in her foreword to Rewriting Children's Rights Judgments: From Academic Vision to New Practice (Bloomsbury 2018). And of course see Jackson's judgment in the case of Lancashire County Council v M and others (Rev 1) [2016] EWFC 9; A (Letter to a Young Person) [2017 EWFC 48, where Mr. Justice Jackson (as he then was) explained his decision-making to the teenager in language that was not condescending or paternalistic, and set out his reasoning in a way that Professor Popkin and Judge Posner would have approved.

16/3/18