Court of Appeal sets aside circuit judge’s “plainly irregular” ruling

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Baker: Extensive and significant omissions from the judgment

The Court of Appeal has set aside a circuit judge’s ruling in public law children proceedings after describing his decision as “plainly irregular”.

Lord Justice Baker said His Honour Judge Oliver in the Central Family Court failed to provide the “detailed analysis” the case demanded.

“Anyone reading the judgment – be it the parties, the public, an appellate court, professionals working with the family, or in later years the children themselves – would have no idea how the judge assessed the complex evidence he heard, why he preferred some parts of the complex and contradictory evidence and rejected others, or why he reached his conclusions on the very serious – life-changing – allegations.”

HHJ Oliver made findings of fact against a 19-year-old man and his mother in care proceedings concerning four younger children.

The judge handed down an oral judgment, despite being asked to do so in writing, saying: “This judgment can only last about an hour because I have another hearing.

“It cannot therefore go into every single detail of every single bit of evidence of the 12 days of hearing, otherwise we would be here for 12 days. If it needs to be expanded, it will be. But I am going to give much more of an overview than anything else.”

The man and his mother appealed on various grounds, including inadequate reasoning and procedural irregularity in handing down the judgment.

Baker LJ said: “It is widely recognised that judges sitting in the family court, where the pressure of work is very great and resources limited, face enormous difficulties and challenges. Plainly the judge was short of time on 21 March.

“But the course he took of delivering what he intended to be a relatively short overview judgment, with a view to the parties asking for further reasons if they so chose, is plainly irregular.”

This approach was not consistent with the “clear guidance” given by the Court of Appeal in previous cases. “This ought not to have been an overview of the judgment, or an outline of the judgment, or a summary of the judgment. It was the judgment.

“With respect to this experienced judge, he ought to have adopted the course suggested by the parties of handing down a written judgment. Cases of this length and complexity, in which serious findings are going to be made which will have a lifelong impact of members of the family, require a much more detailed analysis.”

Baker LJ said there were “extensive and significant” omissions from the judgment, such as the absence of any analysis of the ABE interview, or any assessment of credibility and reliability, or any detailed analysis of the appellants’ evidence.

“The analysis of the evidence was manifestly insufficient, with crucial aspects of it not mentioned at all, and the judge’s explanation for his findings was perfunctory.

“The assertion in the judgment that [the man’s] case was a bare denial completely failed to do justice to the nuanced evidence he gave both in four statements and nearly a day of oral evidence, and the lengthy submissions filed on his behalf.”

The deficiencies were on a scale which could not “fairly be remedied by a request for clarification”.

Baker LJ continued: “Where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis.”

Setting aside the judgment, he said a re-trial would probably not be justified in the circumstances but remitted the case to the designated family judge for Central London for an urgent issues resolution hearing.

Lady Justice Simler and Lord Justice Warby agreed.