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Court witnesses in family disputes ‘have the right to appeal’

Witnesses in family proceedings have the right to appeal if a Judge makes critical comments regarding them in a judgement, the Court of Appeal has concluded.

The case concerned a fact-finding judgement in care proceedings concerning a number of children. An older sister had alleged that a number of a number of family members had engaged in sexual abuse. But, following lengthy consideration of the evidence, a Judge had concluded that none of the allegations could be proven. The ruling issued was very critical of the family’s local authority as well as other professionals, including a social worker and police officer involved in the case.

The children eventually returned home to their parents. The local authority ,meanwhile, and the individual social worker and police officer all launched an appeal against the findings about them, seeking to have certain passages removed from the still unpublished ruling. So the issue was could a court who intended to make adverse findings about others, who were not originally party to the proceedings, and where the decision of the court was unchallenged, still do so or could those parties who were not parties and did not challenge the decision of the court challenge the part of the judgement that affected them and have it redacted or anonymised?

Various delays pushed the hearing to June at the Court of Appeal and the corresponding judgement has only just been published by Lord Justice McFarlane.

The appeal centred around the suggestion that that the social worker and police officer had engaged in a “joint enterprise” to find evidence backing up the allegations of sexual abuse “irrespective of any underlying truth and irrespective of the relevant professional guidelines.” They had involved others in this plan, the Judge claimed, and subsequently lied in court. In addition, the Judge believed, the social worker and police officer, as well as others involved in the case, had subjected the girl who had made the original allegations “to a high level of emotional abuse over a sustained period as a result of their professional interaction with her.”

As well as the disputing the specific allegations, the appellants also complained about the strong language used by the Judge in the currently unpublished ruling.

Lord Justice McFarlane stressed that  the pair had been witnesses in the original care proceedings. And he concluded the human rights of the social worker and police officer to ‘respect for private family life’, under Article 8 of the European Convention on Human Rights, would be breached if the judgement appeared in its draft form. The criticisms made had not been properly raised or discussed during the hearing said His Lordship.

“The process, insofar as it related to the matters of adverse criticism that the judge came to make against [the social worker] and [the police officer], was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law.”

He continued:

“In short, the case that the judge came to find proved against [the social worker] and [the police officer] fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to [the appellants] and the judge did not raise them even after the evidence had closed and he was hearing submissions.”

Lord Justice McFarlane was also very critical of the conclusions reached by the Judge at the original hearing. The judgement had, he said, “fallen short by a very wide margin of that which basic fairness requires in these circumstances”.

There had been a very unusual combination of circumstances in the case, he continued – namely the Judge’s decision to make highly critical findings without having raised these “at any stage prior to judgment.”

As there had been a significant failure to conduct a fair trial in relation to the serious criticisms made, those parts of the judgement at issue should be removed in their entirety.

“… the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge”

Read Re W (A Child) here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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