C (A Child), Re

Although appeals ordinarily lie against orders rather than judgments, the Court of Appeal may exceptionally intervene directly in a judgment where an adverse finding was made without fair notice and there is no corresponding order against which to appeal. The appropriate relief may be confined to striking out the offending passages, particularly where a more elaborate procedure would waste public money.

A judge in continuing care proceedings should not make revisionary findings about past injuries without warning the parties and giving them a fair opportunity to address the proposed findings. The fact that an ancillary finding has no effect on the welfare orders does not justify retaining an unfair and potentially damaging finding.

Care proceedings concerning a child who had suffered non-accidental injuries were determined initially by Judge De Mille. He found that the injuries occurred while the child was in the care of both parents, but could not identify either parent as the perpetrator. He considered the father marginally more likely to have caused them.

After Judge De Mille retired, Judge Green conducted a later hearing. Relying on evidence and questions put to the parents, he found that the mother had caused injuries inflicted on 14 June 2009. The finding did not affect the welfare orders, but it had not been foreshadowed and was not recorded in the order. The mother sought permission to appeal and removal of the finding. The central issue was whether the Court of Appeal could intervene in the judgment despite the absence of an appealable order recording the finding.

1. Permission and disposition. Lord Justice Thorpe granted permission to appeal and allowed the appeal. Lord Justice Patten agreed. Paragraphs 45 to 47 of the judgment below were to be struck out.
2. Procedural fairness. The later judge had been led by questioning during the hearing to make a fresh finding about responsibility for the June injuries. The finding emerged without warning. The mother had no fair opportunity to address the possibility that the court intended to revise the earlier factual position. That breached her fundamental right to a fair trial.
3. Scope of appellate intervention. The ordinary rule is that an appeal lies against an order, not against a judgment as such. The proposed remedy was nevertheless justified in the exceptional circumstances. The order contained no paragraph recording the impugned finding, so the usual course of allowing an appeal and varying the order was unavailable. Directly removing the offending passages was the fairest and most proportionate course.
4. Effect on welfare decision. Judge Green had stated that the finding made no difference to the welfare outcome. That did not cure the procedural unfairness. If retained, the finding could damage the mother’s future relationship with the child’s carers and her developing contact relationship with the child. A more elaborate procedural step would have served no useful purpose and would have wasted public money.

• Court of Appeal (Civil Division) — On 16 February 2012, the court granted permission and allowed the appeal, directing that paragraphs 45 to 47 of the lower court’s judgment be struck out: [2012] EWCA Civ 535.
• Peterborough County Court — Judge Green’s judgment and order dated 26 September 2011 followed earlier fact-finding by Judge De Mille. The later judgment attributed the injuries inflicted on 14 June 2009 to the mother.
• Permission stage — Permission was refused below. Black LJ adjourned the mother’s application for oral hearing on 19 December.