B4/2006/0016 & B4/2006/0119

Neutral Citation Number: [2006] EWCA Civ 754
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION 
BLACKBURN DISTRICT REGISTRY
(HIS HONOUR JUDGE GEE)
 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 9th May 2006
 B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE SMITH
MR JUSTICE HEDLEY
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IN THE MATTER OF J & K (CHILDREN)
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  (DAR Transcript of 
Smith Bernal Wordwave Limited
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MR COBB QC and MS BOWCOCK (instructed by Messrs Haworth & Nuttall, 7 Lord St West, BLACKBURN, BB2 1LA) appeared on behalf of the Appellant.
MRS HAMILTON QC and MR P HART (instructed by Messrs Rawsthorns, 4 Lune Street, Preston, LANCASHIRE, PR1 2NL) appeared on behalf of the First Respondent.
MS ROWE QC and MR DODDS (instructed by Messrs John Whittle Robinsons, 13 Cross Street, PRESTON, PR1 3LT) appeared on behalf of the Second Respondent.
MR HAYDEN QC and MS WALL (instructed by Messrs John Swindell & Co, St John’s House, 31 Wellington Street, BLACKBURN, BB1 8AF) appeared on behalf of the Fourth Respondent.
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J U D G M E N T
1.	LORD JUSTICE THORPE:  On 15 September 2005, HHJ Gee, sitting as a judge of the High Court, directed that a public law case be listed before him for a four-day hearing to commence on 28 November 2005 to determine the facts asserted by the local authority in the establishment of the threshold criteria.  At the conclusion of that hearing, an order emerged which gives little indication of the outcome of the factual investigation.  The order first records an injunction against the father and then directs that there should be further directions given by the judge in about a month’s time.  The threshold criteria that the local authority asserted were found proved by the judge in their entirety and unconditionally.  They appear by incorporation in his judgment and run to several pages, although they are all within paragraph 4 of the judgment.  

2.	The judge also directed that the final submissions of both counsel for the local authority and counsel for the guardian, should be scheduled to his judgment if a transcript were required.  The judge said that those final submissions:

“… contain a telling analysis of all the mistakes, all the prevarications in all the matters which highlight why the evidence was given to me by these three [that is to say, mother, father and eldest child] was so poor and unbelievable.”

3.	Subsequent analysis suggests that the judge’s findings fell into four separate categories: (1) domestic violence between mother and father; (2) anal intercourse between step-father and eldest child of the family; (3) inappropriate sexual boundaries between that child and her step-father; (4) a specific occasion on which the mother had caught eldest child and her then husband in bed together.  

4.	There was an immediate application for permission to appeal, refused by the judge.  However, subsequently there was a conversation between the judge and junior counsel for the local authority in which he suggested, I suppose pragmatically, that if there were appellate proceedings on foot and if the real crux of the intended appeal was his finding of anal intercourse, then he might consider reviewing and deleting that finding since there would be sufficient in all his other findings to enable the case to proceed to disposal.  This conversation was made available to the other parties in the case and added fuel to the complaints that were persuasively developed in the skeleton argument of Miss Eleanor Hamilton QC for the eldest child of the family, and in the skeleton argument of Mr Anthony Hayden QC, counsel for the step-father.

5.	The responses from the local authority and the guardian came in the skeletons from Mr Cobb QC and Miss Rowe QC, made available on 28 April.  Essentially, neither the local authority nor the guardian sought to uphold the judge’s finding of anal intercourse.  Both experienced leaders accepted that there were deficiencies in the judge’s judgment and that his finding in relation to the specific incident of asserted anal intercourse could not stand.  However, they asserted that the remainder of the judge’s findings were not so vulnerable, given that there was independent or corroborative evidence in relation to the other matters, coming either from other members of the family or from a near neighbour.  

6.	So when the case was called before us this morning, it was apparent that the only issue for us to decide was whether the judge’s more general findings could be salvaged from a judgment which was, by common consent, defective.  The alternative would have involved an extensive and expensive re-trial.  

7.	Mr Hayden, who had been handicapped by very late receipt of Mr Cobb’s skeleton, despite the fact that it had been served on his instructing solicitors some seven days ago, sensibly proposed that an endeavour should be made to agree between the parties before the court today, all represented by leading and junior counsel, a threshold statement, distilled from the threshold that the judge had adopted, which would be acceptable to the parties and which would allow the case to go forward to disposal.  

8.	We granted time and are grateful to the Bar for having achieved a successful resolution.  A threshold document is now agreed between the parties and the case will proceed to a disposal hearing, which will be arranged by the liaison judge, Ryder J, before a circuit judge either in Blackburn or in a neighbouring care centre.  There is no reason why the case should remain in the High Court.

9.	So we grant permission, we allow the appeal and annexe to today’s order the revised and agreed threshold statement.  However, it is necessary to recognise and record that many of the complaints made of the judgment of 5 December are well-founded and the choice for this court, had there not been an agreement, would have been finely balanced as to whether to retrieve some of the judge’s findings or whether to conclude that his judgment was so flawed that the exercise of trial and judgment must be commenced again from a fresh start.  

10.	The case was not unfamiliar in that the local authority’s threshold document was essentially founded upon serious allegations and complaints made by the mother and the eldest child against the step-father and carefully recorded in contemporaneous statements to the police and to others.  There was also a certain amount of independent evidence, as I have already remarked.  

11.	The case then took an equally familiar U-turn when the family members collectively retracted the statements of complaint.  So the judge approached the case on the basis that he had to weigh the veracity of the retractions.  If he was unconvinced, then the case was proved.  The difficulty with that approach is that if he rejects the credibility of the witnesses who retract, it is hard to found positive findings on the earlier evidence of those same untruthful witnesses.  Accordingly, the judge had to explain very carefully how he came to positive conclusions against the family members, in particular founding himself on available corroboration or independent evidence that was undoubtedly available for a number of the lesser assertions.  Unfortunately, the judge did not embark on that more painstaking exercise.  He was evidently vexed with the case and with the family members, who he said had given evidence more untruthful than any evidence that he had ever heard in 23 years of sitting.

12.	Whilst I am entirely sympathetic with the burden carried by a judge of HHJ Gee’s seniority and responsibilities, still the obligation at the end of the case is to present a reasoned judgment which clearly demonstrates to all those against whom findings are made why they have been condemned, and the process of reasoning that leads to their condemnation.  That this judgment lacks and it is regrettable that it is as deficient as it is.  The practice of simply reading into the judgment the threshold findings sought in their entirety and then subsequently adopting wholesale the written submissions of two of the parties, seems to me a dangerous practice which is likely to attract permission applications and subsequent criticism in this court.  

13.	Equally, the no doubt pragmatic decision to offer some local solution to avoid a London appeal had obvious dangers, which have been quite rightly emphasised in the appellant’s skeletons.  That said, I would simply make the orders that I have proposed.

14.	LADY JUSTICE SMITH:  I agree.

15.	MR JUSTICE HEDLEY:  I also agree.

Order: Permission to appeal allowed.  Appeal allowed.