Court of Appeal examines applicability of criminal law directions and principles to family cases

The Court of Appeal has considered the application of directions and principles applied in the criminal jurisdiction to family cases, and also when counsel can seek clarifications of a judge’s reasons.

The case of J, P & Q (Care Proceedings) [2024] EWCA Civ 22 concerned two appeals brought against findings made in care proceedings concerning three girls.

Before considering the various grounds of appeal, Lord Justice Baker sought to make “three general points”.

The Court of Appeal judge said: “First, at the conclusion of a challenging hearing, the judge delivered a clear and comprehensive judgment in which she made nuanced findings on the local authority's allegations.

“She emphasised…. that she was not seeking to rehearse all of the evidence and submissions but rather to highlight those matters relevant to her assessment of the allegations and that which was necessary to enable those reading the judgment to understand the rationale for her findings. This approach was entirely appropriate and in keeping with accepted practice.”

He noted: “In my view, the judgment in this case manifestly met the required standard.”

The Court of Appeal judge said it followed that the parties would “almost invariably” be able to point to parts of the evidence on which they relied and submissions which they made which were not expressly referred to in the judgment.

He said: “This is particularly so in complex care proceedings. The wider the canvas, the greater the likelihood that parts of the evidential picture or argument will be omitted from the judgment.

“This may be the explanation, or at least one explanation, for the widespread practice in care proceedings of seeking clarification of a judge's reasons.”

Lord Justice Baker concluded that in this case, the facility granted to the parties to seek clarification was “largely used as an opportunity to make, or reiterate, submissions and invite the judge to review her findings”. He noted that this was “plainly going beyond what is permitted”.

The Court of Appeal judge said: “I recognise that counsel may be faced with clients who want to know more about why their case has not succeeded. In the course of oral submissions, [counsel for F] acknowledged that the request in this case was too long but submitted that it is often tricky for counsel to decide whether a proposed request falls within what is permissible.

“But hard-pressed judges sitting in the family jurisdiction should not be burdened after delivering judgment by requests from advocates asking whether they have taken into account a particular piece of evidence and, if not, whether they would do so and review their findings.”

Lord Justice Baker went on to consider a “third general matter”, namely the application of directions and principles applied in the criminal jurisdiction to family cases.

He noted that in Re R (Children) (Import of Criminal Principles in Family Proceedings [2018] EWCA Civ 198, the Court of Appeal had considered an appeal against findings made in care proceedings following an incident in which the mother had sustained fatal injuries from a knife in the course of an altercation with the father.

At first instance, the father presented his case by direct reference to the criminal law relating to self-defence. All parties couched their arguments in terms derived to some extent from the criminal law of homicide, Lord Justice Baker said. The judge at first instance concluded that the local authority had established "that it was more likely than not that the father did not act in self-defence" and found that the father "had used unreasonable force and unlawfully killed the mother".

Lord Justice Baker said: “This Court allowed an appeal against the findings and ordered a re-hearing, in part because in the words of McFarlane LJ giving the lead judgment, a ‘serious error occurred in the trial in relation to the relevance of the criminal law’.”

Lord Justice Baker highlighted McFarlane LJ’s summary, at paragraph 82 of his judgment in Re R, of the distinction between family and criminal procedures in these terms:

"(a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court….

(b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child's future with the court's eyes open to such risks as the factual determination may have established ….

(c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court ….

(d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts …."

Lord Justice Baker said that, in his view, the approach adopted in Re R “applies equally to rules of evidence and procedure such as the directions given to juries about delay and a defendant's good character”.

He added: “In a criminal trial, the judge is required, in appropriate cases, to direct the jury that (1) delay can place a defendant at a material disadvantage in challenging allegations arising out of events that occurred many years before, (2) the longer the delay, the more difficult meeting the allegation often becomes because of fading memories and evidence is no longer available, and (3) when considering the central question whether the prosecution has proved the defendant's guilt, it is necessary particularly to bear in mind the prejudice that delay can occasion: R v PS [2013] EWCA Crim 992. 

“In a family case, the fact that allegations are raised many years after the event, when memories have faded and evidence has been destroyed or mislaid, is part of the evidential picture which the judge must address. But there is no obligation to give herself a formal direction in those terms.”

The Court of Appeal judge added that the meaning of "good character" in the context of criminal trials had been a matter of extensive consideration in case law. “In broad terms, what is called ‘good’ or ‘bad’ character in criminal cases is evidence about the defendant's behaviour in the past that may tend to show that the defendant has, or does not have, a tendency, disposition or propensity to behave in the way alleged and/or to be dishonest. In a criminal trial, a defendant with an unquestioned good character has a right to have that character taken into account in his favour when assessing the likelihood of his having committed the offence charged and, where the issue arises, his credibility."

He said: “In civil and family cases, the focus is not on whether the prosecution have proved to the criminal standard that a person has committed an offence but rather whether the facts relevant to the issue in the proceedings have been proved on a balance of probabilities. In children's cases in the family courts, where the child's welfare is the paramount consideration and the court is required to have regard to any harm the child has suffered and the capacity of his carers to meet his needs, evidence about the character of those carers and others may be relevant. At the end of a complex fact-finding hearing, the judge may have heard a great deal about the character of the parents and other family members. That evidence may include the fact that the individual has no relevant previous convictions. But the judge is not obliged to give herself a formal direction about that. It is simply part of the wide canvas which the judge takes into account.”

With these points in mind, Lord Justice Baker went on to dismiss both appeals. Lord Justice Warby and Lord Justice Coulson agreed.

Lottie Winson