Family judge would have been “forgiven for feeling bamboozled”: Court of Appeal hits out at inappropriate requests for clarification

The Court of Appeal has dismissed a local authority’s appeal against findings made in care proceedings concerning a small boy, and has warned against the “inappropriate use” of the 'request for clarification' procedure.

In YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71, Lord Justice Baker said the child, (Y), was born in September 2021. Following discharge from hospital, Y and his parents lived with the maternal grandparents until early October 2021, when they moved into a one-bedroom flat.

Both of Y’s parents have cognitive difficulties and were assisted by intermediaries during the proceedings.  

In early November 2021, the mother observed “extensive bruising” to Y's right forearm. She sent photographs of the bruising to the grandmother who advised her to contact the GP. The mother contacted the surgery about a rash on Y's arm, chest and head. The GP advised the mother to take Y to hospital. The mother did not follow this advice.

On 24 November 2021, ZZ, a work colleague of the father, stayed overnight at the family home. According to the parents, he was the only person to have stayed with the parents following Y's birth and had visited the family on only one earlier occasion, said the judge.

On 25 November, Y was taken to hospital by the mother who complained that he was unable to move his right leg. Following examinations, which identified fractures and bruising, the hospital staff contacted the local authority children's services and Y was placed into foster care under s.20 of the Children Act.

In January 2022, the local authority started care proceedings and Y was made subject of an interim care order.

Case management directions were given for a fact-finding hearing, including permission to instruct a number of medical expert witnesses.

The hearing took place over 14 days between April and July 2023. On 31 July 2023, the judge delivered an oral judgment in which she found that all of the injuries had been inflicted by the father.

In the order made at the conclusion of the hearing, the judge listed the case for a further case management hearing on 4 September 2023 and for final hearing over nine days in January 2024.

Amongst other case management directions, the judge directed the local authority to apply by 7 August for a transcript of the judgment. It was recorded that the transcript would be amended to include a section on the law which the judge had omitted.

Initial requests for clarification were submitted during August, to which the judge declined to respond until the transcript was produced.

At a case management hearing on 12 October, the parties sought additional clarification of the judgment. On 19 October, the judge delivered a supplemental judgment in response to those requests.

At a further case management hearing on 7 November 2023, the father, supported by the local authority and guardian, sought further clarification of the judgment.

The judge noted that the present appeal, brought by the local authority, was based principally on “perceived differences and inconsistencies” in the judge's reasoning between the original judgment and the responses to requests for clarification.

Outlining relevant caselaw on requests for clarification, Lord Justice Baker said: “In Re A, B and C (Fact-finding: Gonorrhoea) [2023], Coulson LJ, whilst agreeing that the requests for clarification in that case had been "properly conducted" and "an extremely valuable exercise", observed:

"In my experience, the practice in family cases of making oral and written requests to the judge for clarification of matters in his or her judgment can sometimes amount to no more than an illegitimate attempt to reargue the case, or to bamboozle the judge into errors or inconsistencies."

Considering the clarifications process in the present case, Lord Justice Baker concluded: “Overall, the scale of this clarification exercise was wholly unreasonable. I calculate (although I may have lost count) that there were no fewer than seven requests for clarification between 31 July and 7 November.

“I am sure that counsel were not intending to 'bamboozle' the judge (to use Coulson LJ's word) by their repeated requests but she would certainly be forgiven for feeling bamboozled. In some instances, counsel were plainly trying to lead the judge to refine her judgment so that her ultimate findings were closer to the outcome favoured by their client. The question for this Court is whether at the end of this chaotic process the integrity of the judgment has been fatally undermined.”

Turning to the appeal, the judge outlined the local authority’s five grounds:

1. The finding that all the injuries suffered by Y were the consequence of a 'lack of care' by the father was not supported by the expert medical opinion.
2. The medical records and expert evidence did not support the court's finding that the parents would have been unaware that Y had suffered significant injuries.
3. The finding that the father had not intended to cause injury to Y was incompatible with the weight that the court had attached to previous threats of harm made by the father to Y, which the judge relied upon in concluding that the father had caused all of the injuries.
4. The judge failed to sufficiently consider whether the father could have caused each injury suffered by Y, determining the issue of perpetration on grounds of propensity rather than opportunity, and failing to have sufficient regard to the absence of opportunity to cause injury without being detected by the mother.
5. The finding that the mother was unaware that the father had injured Y on the evening of 24 November 2021 and had therefore not colluded with the father to blame ZZ for the leg fracture supported by the expert medical opinion, as to how Y would have reacted following this injury, or by the evidence provided by his parents.

The Court of Appeal judge dealt first with grounds 1, 3, and 4, which concerned the findings against the father alone, and then grounds 2 and 5, which concerned both parents.

On grounds 1 and 3, Lord Justice Baker said: “I do not accept the submission under ground one that this assessment amounted to a rejection of the expert evidence or a substitution or modification of her basic finding that the injury was inflicted by the father using excessive force. Although one might debate whether there is a distinction between an injury caused by rough handling and an injury caused through lack of care, it would be wholly disproportionate to overturn the findings and order a rehearing on the basis of any perceived contradiction on this issue.”

He continued: “The judge's overall conclusion can be shortly summarised as follows. The child sustained serious injuries on more than one occasion. They were not caused by rough handling. They were inflicted by the father using excessive force. He did not inflict them deliberately out of malice but rather because, as a result of his inexperience and cognitive difficulties, he did not know how to handle a small child and did not recognise the harm he had caused. This conclusion was based on the judge's assessment of the totality of the evidence after a very long hearing in which she heard evidence from the key witnesses. As the trial judge, she was in a unique position to carry out that assessment and there are no compelling reasons for this Court to interfere. It is a coherent conclusion which is plainly sufficient for the purposes of future assessments.”

Turning to ground 4, the judge concluded: “There is no merit in the fourth ground of appeal. […] The fact that the father was not often alone with the child did not prevent the local authority identifying him as a possible perpetrator. It is difficult to see on what basis it is now said that the judge was wrong to make a finding that the local authority always asserted was open to her.”

Considering the remaining grounds, the judge noted that it was not for a paediatrician who gave oral evidence to express a view whether the parents, with their characteristics and difficulties, would or should have realised that Y had sustained injuries. Rather, “it was a matter for the judge to assess on the totality of the evidence.”

On ground 5, the local authority submitted that if, as the court had found, the father was responsible for all of the injuries, then the mother must have known that he had caused injury to Y. Further, the mother took no steps to protect him from further injury and was “complicit” in attempts to blame ZZ for an injury that she must have known that he did not cause.

Lord Justice Baker said: “I accept that the judge's treatment of the collusion issue was perfunctory. But given the extensive findings which the judge has made, including the finding that the mother failed to seek medical attention for a child, it would be wholly disproportionate and unnecessary to direct a rehearing for that issue to be reconsidered.”

Dismissing the appeal, he concluded: “The written judgment, amplified by the responses to requests for clarification, provides a sufficient explanation of the reasons for [the judge’s] findings. I am not persuaded that they are undermined by any significant or material inconsistencies.”

Finally, Lord Justice Baker warned that the request for clarification procedure was “still being misused”. He outlined the following ‘lessons to be learned’ from the case:

1. A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings.
2. When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.
3. Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.
4. Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.
5. Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

Lord Justice Green and Lord Justice Males agreed.

In his concurring judgment, Lord Justice Males said: “I acknowledge that counsel may sometimes be on the horns of a dilemma. If no request for clarification is made on those rare occasions when a judgment is patently inadequate, criticism may be made if a complaint of inadequate reasons is made for the first time on appeal. Nevertheless, this court has warned repeatedly against the inappropriate use of the 'request for clarification' procedure. It was suggested by counsel that the message may not have got through to family law practitioners as yet, but if that is so, it is high time that it did.”

Lottie Winson