A (Children), Re

A procedural irregularity in family proceedings does not automatically invalidate a fact-finding judgment. Where a judge meets a child after evidence has closed and before judgment, without giving the parties an opportunity to make representations, the court must assess whether the irregularity was sufficiently serious to undermine the integrity of the trial. The key questions are whether the judge relied on the meeting in making final findings or whether the parties had a real perception that he may have done so. A judge-child meeting carries particular contamination risks where past events are being determined and judgment is reserved. Preliminary issues and proved threshold matters must also be identified precisely in the directions and final order.

Care proceedings concerned five children and allegations of physical, emotional and sexual abuse and neglect. Following a 12-day preliminary issue trial, His Honour Judge Richards made findings supporting the local authority. After the evidence and submissions had concluded but before judgment was delivered, he met JO, aged ten, without first giving all parties an opportunity to make representations. The mother and father appealed, alleging breaches of the April 2010 guidance and reliance on material obtained during the meeting. They also challenged the breadth and form of the judge’s findings and order. The central issue was whether the meeting or defects in the order undermined the fact-finding process.

1. Disposition. The Court of Appeal dismissed both appeals and augmented the order below. The order was confined to the matters found proved in document F, document F1 with one deletion, and the extension of F1 by the findings referred to in paragraph 99.
2. Meeting between judge and child. The judge should not have met JO after the conclusion of the evidence and before judgment without giving the parties an opportunity to make representations. The meeting was also not an occasion for gathering evidence. The failures amounted to a procedural irregularity.
3. Materiality and trial integrity. The irregularity did not automatically invalidate the judgment. The decisive question was whether its effect was sufficiently serious to undermine the integrity of the trial. Relevant considerations included whether the judge relied on the meeting in making his final findings, or whether the parties were left with a real perception that he might have done so. Reading the judgment as a whole, the factual findings had been completed by paragraph 94, principally on the basis of the evidence given at trial. The later discussion of JO was an explanatory tailpiece. Although paragraph 97 was imperfectly expressed, the judge stated that JO’s account was not determinative and merely coincided with a view independently formed.
4. Guidance for future cases. The court distinguished between oral evidence by a child and a judge-child meeting. Oral evidence directed under the December 2011 guidance carries no greater contamination risk than evidence from another witness. A meeting under the April 2010 guidance carries greater risk, particularly where the purpose is to determine past events, the evidence is closed and judgment is reserved. Meetings are safer in proceedings concerned with future arrangements, where the judge is assessing wishes and feelings. Judges should explain when the evidential process is complete and avoid creating an impression that their minds remain open to influence. The guidelines remain guidelines, but their risks require careful management. The earlier discussion in Re W [2008] 3 FLR 1170 and Re W [2010] Civ 57 formed part of this context.
5. Form of order and appealability. A preliminary issue should be defined precisely in an early directions order, and the final order should identify the scheduled matters proved. A postscript or appended schedules is not a satisfactory substitute. Lewison LJ additionally observed that an appeal lies against an order rather than merely its reasoning, following Lake v Lake [1955] P 336. Re B (split hearing jurisdiction) [2001] FLR 334 was exceptional and did not overrule or qualify that principle.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 185, both appeals were dismissed and the order below was augmented.
2. Norwich County Court: His Honour Judge Richards conducted a preliminary issue trial in care proceedings and made findings concerning the alleged harm suffered by the children.