P (A Child)

In care proceedings, a fact-finding judgment must identify clearly the specific allegations proved and provide sufficiently clear and balanced reasons. It need not address every detail, but it must enable the parties and an appellate court to understand what was decided and why. A failure to identify the findings or to engage with significant evidence, including inconsistencies, professional evidence and reliability, may make the determination unsustainable and unfair. Resulting findings may be set aside and disregarded in future dealings. A separate care order may remain where it rests on an unchallenged threshold basis. After a request for clarification, an appeal should be issued if finality is not achieved within a reasonable time; more than four weeks will rarely be justified.

The appeals arose from care proceedings concerning T, an adopted teenager who had made allegations of sexual abuse against her adoptive father. T was accommodated under Children Act 1989, section 20, and care proceedings were later issued. Mrs Justice Parker conducted a 12-day fact-finding hearing and subsequently gave oral determinations in December 2016 and January 2017. She stated that T had been sexually interfered with and emotionally harmed, but did not clearly identify which of the five pleaded findings were established or adequately address important evidence, including inconsistencies and professional evidence concerning reliability.

The father and mother appealed. The local authority and children’s guardian accepted that the judgment was unsustainable. The central issue was whether the first-instance process and judgment provided a sufficiently clear, fair and supportable determination of the allegations.

The Court of Appeal allowed both appeals, notwithstanding that they proceeded by consent. Lord Justice McFarlane gave the judgment, with Lord Justice David Richards and Lord Justice Peter Jackson agreeing.

1. A judge has a wide discretion to accept or reject evidence and need not address every detail. However, a party against whom serious findings are made must be able to identify the actual findings and the clear basis for them. The judgment should link the findings to the pleaded allegations or threshold schedule where necessary.
2. The first-instance judgment was fundamentally flawed. It did not state which of the five specific allegations had been proved and did not sufficiently engage with important matters, including inconsistencies in T’s accounts, the context in which the allegations were made, professional evidence and the alleged deficiencies in the ABE interview. The findings were therefore unsustainable and unfair.
3. The parties had followed the clarification process described in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. Where clarification is sought, it is ordinarily reasonable to await that process before appealing. If finality is not achieved within a reasonable time, a notice of appeal should be issued. The court considered that a period exceeding four weeks would rarely be justified. Issuing an appeal does not prevent clarification continuing, and the Court of Appeal may itself seek clarification.
4. The later approved version of the judgment did not alter the conclusion. The oral determinations were set aside in their entirety and were to be disregarded in future dealings with the family. The care order concerning T remained in force because the separate finding that she was beyond parental control satisfied the threshold under Children Act 1989, section 31(2)(b)(ii). The local authority was directed to notify relevant agencies that the findings were to be disregarded and that the parents were to be treated neither adversely nor favourably because of the allegations.

• Court of Appeal (Civil Division): Appeals allowed; the two oral fact-finding determinations were set aside and ordered to be disregarded. The care order concerning T continued. [2018] EWCA Civ 720.
• High Court, Family Division: Mrs Justice Parker made oral fact-finding determinations in December 2016 and January 2017 and made a final care order in January 2017.