A and L (Children), Re

Where an appeal alleges inadequate reasons, advocates must promptly identify omissions, ambiguities and deficiencies to the trial judge. A trial judge asked for permission to appeal on that ground should consider whether additional reasons can cure any defect.

The appellate court may decide the appeal on the existing judgment, remit defined questions for clarification or amplification, or, where defects are incurable, allow the appeal and order a rehearing. In split care proceedings, fact-finding conclusions remain open to reconsideration before the final order. A remittal must therefore leave the trial judge free to revise earlier findings after re-evaluating the evidence.

During a fact-finding hearing in care proceedings concerning A and L, His Honour Judge Compston found that the mother had participated in their sexual abuse by friends. The mother appealed, contending that the judgment gave insufficient reasons and analysis for that finding.

The appeal concerned whether the alleged deficiencies required the finding to be set aside, or whether the appropriate course was instead to obtain further reasons from the trial judge. The findings concerning neglect, contact and domestic violence were not challenged.

1. The appeal was adjourned part heard and the case remitted to Judge Compston. The court invited him to provide such further reasons as he considered appropriate. The appeal would resume before the same constitution after his response.

2. The established practice for a complaint of inadequate reasons applies equally in family and ordinary civil appeals. An advocate has responsibility, whether invited by the judge or not, to identify material omissions, genuine ambiguities and deficiencies in the reasoning. A judge asked for permission to appeal on a lack-of-reasons ground should consider whether additional reasons can cure the defect.

3. The appellate court has a range of responses. It may determine the appeal on the judgment as delivered. It may remit defined matters to the trial judge for clarification or amplification, usually without further evidence or submissions. If the defects are so serious that this cannot fairly be done, it may allow the appeal and order a rehearing before another judge.

4. A fact-finding hearing in care proceedings is part of a single trial. Its findings are not immutable before the final order. Accordingly, on reconsidering the evidence the judge was free to alter his earlier findings concerning the mother.

5. The remittal identified the central question: what evidence supported the conclusion that the mother knew of and participated in the abuse. It specified related matters, including A’s inconsistent accounts and propensity to fantasise, the ABE interviews, the foster-home context, allegations against the paternal grandmother, the exculpation of others, corroborative evidence, and the findings concerning L. The judge was to reconsider the existing evidence and material, with the mother’s transcript, but without further material unless requested.

• Court of Appeal (Civil Division): By [2011] EWCA Civ 1205, remitted defined issues to the trial judge for possible clarification, elaboration or reconsideration, and adjourned the appeal part heard.
• Principal Registry of the Family Division: His Honour Judge Compston made findings on 27 May 2011 during a fact-finding hearing in ongoing care proceedings. He found the mother involved in the sexual abuse of the children.