W (A Child), Re

Where a family judge contemplates making serious adverse findings against a professional witness that fall outside the case advanced at the hearing, procedural fairness requires proper notice and a real opportunity to answer them before the judge reaches a concluded decision. The procedural protection of private life under Article 8 may extend to professional reputation and employment. A public authority is likewise entitled to a fair process under Article 6.

A witness afforded a limited right to participate in relation to such findings may be an intervenor and an additional party. In any event, the Human Rights Act appeal route permits an appeal against an unlawful judicial act. Post-judgment submissions will ordinarily be incapable of curing unfairness after firm findings have been announced. Untested findings must be set aside, not merely withheld from publication.

In ongoing care proceedings, a judge dismissed allegations of sexual abuse but made severe adverse findings against a local authority, a social worker and a police officer. The findings had not been advanced by any party, put to the witnesses, or raised by the judge before his oral bullet-point judgment.

After that judgment, the judge permitted submissions on drafts of his reasons and made some amendments. The local authority and the two professionals appealed. They did not challenge the dismissal of the sexual-abuse allegations. They sought removal of the unforeshadowed criticisms on the ground that the procedure was unfair and breached their Convention rights.

The central issues were whether the professionals could appeal against findings rather than an order, whether their private-life rights were engaged, and whether the later submission process cured the unfairness.

1. Appeals allowed. The social worker and police officer had become intervenors, and thus additional parties for the judgment stage, when they were allowed representation and submissions on the draft judgment. Independently, the definition of appellant in the Civil Procedure Rules was not confined to a person who had been a party below. All three appellants could therefore be heard.

2. The serious findings were capable of engaging the professionals’ right to respect for private life under Article 8. That right extends to professional life where reputation and the ability to work in a chosen field may be affected. It includes a right to a fair decision-making process. The local authority was entitled to equivalent fairness under Article 6.

3. Fairness required that the adverse case be made known and put to the affected witnesses before decision. The judge’s criticisms were wholly outside the issues litigated during the hearing. They were not put to either professional in evidence, raised in submissions, or foreshadowed by the judge. This was an extreme and fundamental failure of fairness.

4. Where significant unforeshadowed findings may arise, the judge should alert the parties, consider disclosure and time to respond, ensure that the case is put to the witness, and consider legal advice or representation. This guidance was directed to the rare situation in which the proposed criticism lies outside the known parameters of the case; it did not require defensive judging.

5. The later process of written and oral submissions did not cure the defect. It followed the announcement of the judge’s firm conclusions. Fairness ordinarily requires the affected person to participate before the judge reaches and announces a concluded decision.

6. Cie Noga SA v Australia and New Zealand Banking Group did not prevent an appeal. The findings were judicial acts alleged to be unlawful under the Human Rights Act 1998. Sections 7 to 9 required the complaint about a judicial act to be pursued through an appeal, without first characterising the findings as an appealable order, judgment or determination.

7. The impugned findings were set aside. The effect was not merely redaction from a published judgment: the findings had no further validity for any purpose and were to be treated as never having been made.

• Court of Appeal (Civil Division): Allowed the appeals and set aside the adverse findings made through an unfair process.
• Family Court: In care proceedings, a circuit judge sitting as a Deputy High Court judge dismissed allegations of sexual abuse but made adverse findings against the appellants in a fact-finding judgment. No citation for that judgment is stated.