I (Children)

A draft judgment permits correction of errors and, exceptionally, requests concerning a material omission, genuine ambiguity, lack of reasons or deficiency in reasoning. It does not permit parties to reargue the case, negotiate the outcome or seek to dilute findings.

Fresh evidence arising after trial is distinct from clarification. It must promptly be disclosed to every party. A party seeking its admission should give proper notice and invite the judge to decide, through case management and after hearing all parties, whether judgment should be delayed or further evidence received.

Following a fact-finding hearing in care proceedings, the judge gave apparently inconsistent explanations for a baby's right-sided skull fracture. She found that the mother had inflicted the injury following a loss of control or, alternatively, that an incident had occurred after the mother left the baby unattended. After receiving the draft judgment, the mother supplied a new account supporting the latter possibility.

All parties agreed that the appeal should be allowed because the judge had not made a sufficiently clear determination. The Court of Appeal had to decide whether to substitute a finding that the fracture remained unexplained or order a rehearing. The appeal also raised the proper limits of requests to clarify draft judgments and the procedure for fresh evidence emerging between trial and hand-down.

1. The appeal was allowed by consent and the proceedings remitted for a complete rehearing before a different judge. The new account could not justify substituting a finding that the injury remained unexplained. How the injury occurred was important to a fair and comprehensive assessment of the mother as a future carer. Her changed account and the related evidence required testing in the conventional way, notwithstanding the resulting delay for the child.

2. The clarification procedure derived from English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 applies in family proceedings. An advocate should identify a material omission, genuine query or ambiguity, lack of reasons or other deficiency in reasoning. The judge and appellate court should consider whether such a defect can be remedied by additional reasons.

3. That responsibility is consistent with the strict limits governing draft judgments. Their circulation principally permits correction of typographical, spelling and minor factual errors. Only rarely and exceptionally may a party seek substantive amplification. A draft is not an opportunity to reopen argument, critique the judgment, negotiate the outcome or dilute an unwelcome finding. The request made for the mother crossed that boundary.

4. Fresh evidence emerging after trial must be kept separate from clarification. It must immediately be provided to every party. Any statement on which reliance is sought must be served on all parties and, without their express written consent, must not be sent to the judge. A party seeking postponement of hand-down must give proper notice so that the judge can hold a directions hearing and hear submissions from every side. The judge must then decide, using case-management powers, whether further steps are required.

1. Court of Appeal (Civil Division): Allowed the appeal by consent and remitted the care proceedings for a complete rehearing before a different judge.
2. Lancaster County Court and Family Court: Following a fact-finding hearing, HHJ Bancroft found that the baby's right-sided skull fracture had been inflicted by the mother, while the judgment also stated an inconsistent alternative involving the baby being left unattended.