B & H (Children), Re

This is an application to appeal on behalf of Mrs Lynda Barnes arising out of public law family proceedings in which the relevant local authority is Bath and North East Somerset District Council. The children are referred to by initials B and H, and their various parents were also directly involved, and also one or more of the grandparents. It was heard by HHJ Barclay in Bristol. It had started in the Bristol County Court but had been transferred to the High Court. It was already a long, protracted and difficult proceeding, but it became dramatically more complicated and difficult when allegations were made about Mrs Barnes, who was the team manager for the relevant social workers of the local authority. Allegations were made against her by one of her subordinates, Ms Ohlsen, who was for part of the relevant period the social worker with direct responsibility in charge of the case. The judge, at paragraph 62 of his judgment, having explained who Ms Ohlsen was, said that in the course of her evidence she made a large number of allegations of a serious nature in respect of Mrs Barnes’ working practices and management style. Then at paragraph 63 the judge went on to refer to what he called the most remarkable development in the case which, as he said, tended at times inevitably to distract the court from the children to the adults involved.

I do not need for present purposes to go into the detail of what emerged, but as the judge later said at paragraph 66, it did have a most unfortunate and destabilising effect on the court process for a number of different reasons. It had the result, first of all, that almost all parties brought in leading counsel, and secondly that the judge directed that Ms Ohlsen and Mrs Barnes should be treated as interveners. The judge allowed them to be represented and they were represented at the expense of the local authority, their employer. The judge identified what he called a discrete issue, which was essentially the issue as to which of Mrs Barnes and Ms Ohlsen should be believed in relation to the allegations made by Ms Ohlsen against Mrs Barnes. The judge had to resolve that, not for its own sake, but in order that he could approach the issues under the Children Act on a proper factual basis.

On Friday 12 December 2008 the judge handed down a long and full judgment in the course of which he made findings of fact on what he calls the discrete issue which were for the most part adverse to Mrs Barnes. On the basis of the findings that he had made both on the discrete issue and on all other issues in the case, he made substantive orders, which we have in the bundle, which affect directly neither Mrs Barnes or Ms Ohlsen but rather the children and parents directly involved in the proceedings and of course the local authority in respect of its statutory functions. As I understand it, none of the direct parties has sought to appeal. At any rate if they have we are not concerned with any such appeal. What we are concerned with is an application brought by appellant’s notice by Mrs Barnes. In section five under the heading ‘Details of the Order(s) or part(s) of order(s) you want to Appeal’, it says quite specifically that the appellant is not appealing against the learned judge’s order but against the adverse and highly prejudicial findings against her in the judgment. It is said that the appellant is appealing as a person who can show that she “is a person interested, aggrieved or prejudicially affected by the judgment”. The reference there is to a case Re M (Prohibited Steps Order: Application for Leave) [1993] 1 FLR 275 in which Johnson J gave permission for a local authority to appeal against an order giving leave for a third party to apply for a prohibited steps order under section 8 of the Children Act.

Ms Grieves, in careful and clear submissions on behalf of Mrs Barnes orally this morning, amplified and built on a skeleton argument submitted by her instructing solicitors, and both supplementary and clarificatory skeleton prepared by herself. She referred to the fact that, because Mrs Barnes was an intervener, she was at least a quasi-party to the proceedings, in order to contend that the procedure adopted and followed by the judge failed to satisfy, as regards Mrs Barnes, the requirements both of natural justice and of Article 6 of the European Convention on Human Rights, and therefore was in breach of section 6 of the Human Rights Act. I do not propose myself to say anything about the substantive issue of fairness. However, prompted partly by the reference to Article 6, we asked Ms Grieves to address us on a preliminary point. Article 6 gives a person the right to a fair and public hearing in relation to the determination of that person’s civil rights and obligations or of any criminal charge against him. There were allegations made against Mrs Barnes which might, if held to be justified, lead to a criminal charge being made against her for perjury. There were allegations which might lead to an issue as to her civil rights and obligations, for example her status as an employee of the local authority. But for my part I find it difficult to see that what the judge was deciding in this case had anything to do directly with the determination of her civil rights and obligations, and it certainly was not the determination of any criminal charge against her.

That ties in with a more formal threshold point. The Court of Appeal has statutory jurisdiction only. The relevant jurisdiction is under section 16(1) of the Supreme Court Act 1981, to hear appeals from any judgment or order of the High Court. Even a party cannot appeal against a finding of fact adverse to that party unless it is either part of the basis for an adverse order, in which case the appeal is against the order, or it is the subject of a distinct declaration. The first example cited in the White Book for that proposition is Lake v Lake [1955] P 336, where a judge had held that there had been adultery but that it had been condoned and therefore refused to make it the basis of a divorce decree. The party against whom the finding had been made sought to appeal, but there was no adverse order against which that party could appeal and the Court of Appeal declined to entertain the appeal.

In a rather different context, the point was discussed in a more recent case, Compagnie Noga v Australia and New Zealand Banking Group [2003] 1 WLR 307, where the Court of Appeal had some consideration of whether it was appropriate for a judge to grant a declaration embodying the effect of a factual finding so that the party could appeal subject to obtaining leave. Sometimes the absence of a formal order may not be fatal in this context. In Re B (A Minor) (Split Hearings: Jurisdiction)[2000] 1 WLR 790, the Court of Appeal entertained an appeal against findings at the end of the fact-finding first stage in a public law Children Act case even though those had not been embodied in a formal order. It considered that there was, as it were, an implicit order against the relevant adult party in terms of the various findings, which would of course have provided the basis for the second stage hearing. Mrs Barnes in the present case was more than just an ordinary witness because of her role within the local authority and her role in the discharge of its statutory functions in relation to the children. The fact that she was made a party meant that her personal interest could be represented, but it is hard to imagine in what circumstances any adverse order could have been made against her at the conclusion of the hearing and of course no such order was made.

In the absence of such an order I fail to see how Mrs Barnes can identify any judgment or order of the High Court against which she can appeal. (The position would have been the same if the case had continued in the county court: see County Courts Act 1984 section 77.) Mrs Barnes’ concern, which one can perfectly understand, is not about the direct consequence of the judge’s judgment, which affects the children and parents concerned. It is about its indirect effect. She is no doubt aggrieved about the judge having come to the conclusion that he did, but the judgment has no direct effect on her. It might be a trigger for further proceedings. Those proceedings might take the form of any one or more of: disciplinary proceedings on the part of her employer, professional disciplinary proceedings or, at the worst, criminal proceedings. In any of those proceedings Article 6 would be directly engaged, natural justice would have to be respected and the determination would be on the basis of the evidence put before the relevant tribunal or court and not the evidence put before HHJ Barclay. The proceedings before HHJ Barclay would be part of the history, but the findings would not be binding on the council or on her or on the prosecution and the facts would have to be reinvestigated; compare, for an example the other way round, the well-known case of Hollington v Hewthorn [1943] KB 587.

One could think of many analogies, for example where an expert witness is castigated in a judgment, which might lead to professional disciplinary proceedings or worse. Of course in such a case the witness would not be an intervener, as Mrs Barnes was, but the fundamental point is the absence of any order affecting Mrs Barnes against which she could appeal. The position in Re M (Prohibited Steps Order: Application for Leave) [1993] 1 FLR 275 was altogether different, as the local authority sought to appeal against the order made in favour of the applicant third party in the lower court.

As it seems to me, whatever Mrs Barnes’ feeling of grievance at (a) the judge’s conclusion and (b) what she considers to have been the defective way in which he reached that conclusion, there is no order or judgment adverse to her against which she can appeal.

For those reasons, quite apart from any factors relevant on the merits, I would for my part refuse permission to appeal.

I agree that this application fails for the reasons given by my Lord. I only add my view on the merits, given the nature of the complaints that have been skilfully addressed by Ms Grieve in her skeleton argument.

HHJ Barclay, the designated family judge in Bristol, had the responsibility to decide the outcome of public law proceedings between the local authority and the family of two children. For him that was a routine responsibility. However, the extraordinary developments that arose from allegations of professional misconduct, either by the front line social worker or her line manager, called for the exercise of all his experience and judgment. Given the consequence of his resolution on the credibility of the two social workers, he took the course which neither could complain of. He allowed them separate representation, and it is to the credit of the local authority that they bore the costs of that separate representation. The judge then had to draw firm boundaries to ensure that the dispute between the two social workers did not derail the primary investigation, namely what outcome best promoted the welfare of the children. In the end, in delivering his judgment, he tackled the question of credibility head on and explained himself at very considerable length in preferring the evidence of the front line social worker to the evidence of the line manager.

Ms Grieve at one point almost hinted that the judge had said too much on this issue. I would only say that it seems to me that his assessment of their respective credibility and his reasoning for preferring the evidence of one over the evidence of the other is a model of conscientious care reflecting his appreciation of the seriousness of the outcome for either. I do not myself see that, had Ms Grieve succeeded in overcoming her principal difficulty, she would have been able to make much headway in complaining of any breach of natural justice. So the application will be refused.