J & K (Children)

In public law care proceedings, a fact-finding judgment must provide a clear, reasoned explanation of each finding, showing why the evidence is accepted and how it leads to the conclusion. Where witnesses retract allegations, rejecting the credibility of the retractions does not by itself justify positive findings based on their earlier accounts. The judge must explain the evidential route, including any corroborative or independent evidence. Simply reproducing threshold allegations and adopting written submissions wholesale is dangerous and may expose the decision to appellate challenge. Where a judgment is materially defective, an appeal may be allowed and a revised threshold statement approved, avoiding a retrial where the parties agree a safe formulation.

The appeal arose from public law care proceedings in which HHJ Gee, sitting as a judge of the High Court at Blackburn District Registry, found the local authority’s threshold criteria proved. The findings concerned domestic violence, alleged anal intercourse between the step-father and the eldest child, inappropriate sexual boundaries, and a specific incident involving the mother, the child and the step-father. The judge’s permission decision was initially refused. Before the Court of Appeal, the local authority and guardian accepted that the finding of anal intercourse could not stand, while other parties challenged the reliability and reasoning of the remaining findings. The central issue was whether those findings could be salvaged without a complete retrial.

Lord Justice Thorpe gave the judgment, with Lady Justice Smith and Mr Justice Hedley agreeing.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The parties agreed a revised threshold statement, which was annexed to the order. The case was directed to proceed to a disposal hearing before a circuit judge, avoiding an extensive retrial.
2. Reasoned fact-finding. A judge must give a reasoned judgment which clearly demonstrates to each person against whom findings are made why they have been condemned and the process of reasoning leading to those findings. The judgment under appeal failed to meet that obligation.
3. Retracted allegations. Where family members retract earlier complaints, a judge who rejects the credibility of the retractions faces difficulty in founding positive findings on the earlier evidence of those same witnesses. The judge must explain the basis for the positive findings carefully, particularly by identifying corroborative or independent evidence. That exercise had not been undertaken adequately.
4. Method of judgment writing. Simply reading the threshold findings into the judgment and adopting written submissions wholesale was described as dangerous practice, likely to attract permission applications and appellate criticism.
5. The Court recorded that, without the parties’ agreement, it would have been finely balanced whether some findings could be retrieved or whether the fact-finding exercise had to begin again.

1. Court of Appeal (Civil Division): On [2006] EWCA Civ 754, permission to appeal was granted and the appeal was allowed. The court approved an agreed revised threshold statement and directed that the case proceed to disposal before a circuit judge.
2. Family Division, Blackburn District Registry: HHJ Gee’s judgment of 5 December 2005 found the local authority’s threshold criteria proved, but the Court of Appeal held that the reasoning was materially deficient.