Court of Appeal criticises “unwise” decision of judge to give ex tempore judgment in care proceedings

In B and G (Fact-Finding) [2026] EWCA Civ 860, Lord Justice Baker, with whom Lady Justice Andrews and Lord Justice Holgate agreed, concluded that the judge’s decision to deliver the judgment ex tempore from notes was “unwise […] in a case of this complexity”.

The case concerned two children, a boy aged 5 and a girl aged 2.

The judge, Her Honour Judge Kushner, had delivered an oral judgment including findings that the children had suffered injuries which were inflicted by one or both of the parents. 

The parents appealed the decision on the following five grounds:

(1) The judge failed to undertake a sufficiently rigorous analysis of the medical and non-medical evidence and in particular:

(a) she failed to accurately identify the key features of the complex medical evidence and the conflicts within it;

(b) she failed to assess the reliability of the parents’ evidence;

(c) she failed to assess the absence of a complete picture of bruising in the children and the accounts given of unexplained bruising to the children while (i) under twenty-four hour supervision by sessional support workers and (ii) in foster care.

(2) The judge failed to undertake a sufficiently rigorous process of reasoning adequate to sustain her conclusions that the children's injuries were inflicted.

(3) The judge failed to explain adequately or at all her reasoning and the basis for the conclusions in her judgment making it impossible to discern why she reached her decision.

(4) If and in so far as the judge reached conclusions that the clinical picture did not include a persistent presentation of unexplained and/or disproportionate bruising including during periods of (i) 24/7 observation by sessional workers and (ii) foster care, that finding was both irrational by reason of failure to take into account relevant matters and one which was not reasonably open to the learned judge.

(5) The judge wrongly relied upon the absence of a clear explanation for the unusual bruising and/or bleeding presentation of the children and/or failed to factor into her reasoning the forensic limitations of the court appointed expert evidence and thereby effectively reversed the burden of proof.

Baker LJ observed it was “clear” from reading the judgment that the judge was not reading out a written text, but delivering the judgment from notes.

He said: “Unsurprisingly, therefore, it is to a certain extent lacking in structure and written in a somewhat informal and discursive style. There is nothing inherently wrong with that, and indeed there was a time when most judgments were prepared and delivered in that fashion. It is, however, a hazardous course to take in a case, like this, where the evidence is complex. The risk is that something important is omitted.

“In this case, the parents’ arguments on appeal include that the judge failed to give proper consideration to their evidence and misconstrued aspects of the medical opinion evidence.”

Baker LJ acknowledged that an assessment of the parents’ evidence, their credibility and reliability ought to have been a “central feature” of the judge’s reasoning.

Allowing the appeal, Baker LJ set aside two findings made by the judge, but said the remainder of the findings remain in place.

He said [at paragraph 89]: “The real problem with the judgment in this case is the way it was prepared and delivered. The judge reserved judgment for six weeks. But it is clear from reading it – and confirmed by the parties – that it was then delivered ex tempore from notes rather than by reading out a settled text. With respect to the judge, this was an unwise course to take in a case of this complexity, with difficult medical evidence which had to be considered in the context of all the other evidence, in particular the accounts given by the parents. As noted above, the risk is that something important is omitted.”

Agreeing with the decision, Lady Justice Andrews said: “I particularly wish to endorse the observations made by Baker LJ at [89]. Whilst judges are, and should be, free to decide whether to deliver an oral judgment or hand down a written one, there are some cases in which it should be readily apparent that the latter course should be followed unless there are good reasons not to (e.g. extreme urgency).

“In my view, because of the nature and complexity of the issues, this case fell within that category, and it was most unwise of the judge to embark on the course which she did. The practice of circulating a draft of a reserved written judgment under embargo gives the parties’ legal representatives the opportunity to draw the judge’s attention to omissions or mistakes, which can then be addressed before the judgment is handed down. This case provides a graphic illustration of what can go wrong if that course is not followed."

Lord Justice Holgate agreed with both judgments.

Lottie Winson