These two appeals concern findings of fact in public law children proceedings. They are appeals by a 19-year-old man, hereafter referred to as S, and his mother against the judge’s decision dated 21 March 2023, by which he made findings of fact against them. The findings came within care proceedings brought by the local authority in respect of S’s younger siblings: T, a 16-year-old girl; U, a 14-year-old girl; V, a ten-year-old girl; and W, a five-year-old boy. The appeals are supported by the children’s father, acting through his litigation friend, but opposed by the local authority and the children’s guardian.

The principal issue arising on the appeals is, once again, the adequacy of the reasons given by the judge for the serious findings he made against S and his mother.

Although the history of the matter which led to the proceedings, and of the proceedings themselves, is complicated, it can be summarised fairly briefly for the purposes of these appeals.

The family has been known to the local authority for 15 years. The father has diagnoses of severe post-traumatic stress disorder with psychotic features and dependent personality disorder. The mother is often his sole carer. There have been lengthy difficulties with housing, money and immigration status which have had an effect on the mother’s ability to care for the children. In November 2008, S and T were placed in foster care for a month under s.20 of the Children Act 1989 when the mother had to stay in hospital after giving birth to U. In the following years, a number of referrals and assessments were made and completed. Between July 2017 and March 2018, the children were the subject of child protection plans under the category of emotional harm. At that stage, the local authority had concerns about the mother’s anxiety, her ability to prioritise the children’s needs, and the speech and language development of U and V, both of whom were described by CAMHS as selectively mute.

Towards the end of 2020, the local authority began to be concerned about T’s peer groups: she was reported missing from school on one occasion and was found with a friend who had been assessed as being at high risk of sexual exploitation.

On 5th February 2021, police officers were called to the family home by S as a result of an incident involving T. While they were there, T made allegations that her brother had sexually abused her on occasions when she was aged 11 and 12. She further alleged that her mother had known about the abuse and done nothing to protect her.

T was subsequently interviewed under the ABE procedure. She repeated her allegations and also alleged that on another occasion her mother had slapped her cheek and kicked her.

S was interviewed and denied the allegations. The mother also denied knowing or being told about the allegations. She raised concerns about T’s behaviour and the young persons with whom she was associating at school which had led to a deterioration in her behaviour and use of illegal substances.

T has been the subject of an interim care order since the beginning of the proceedings. She has stayed in foster care and several different residential placements. During this time she has suffered significant mental health crises and self-harmed on many occasions. She has absconded from the placements many times and on most occasions returned to her family home. On one occasion when she absconded, she alleged sexual assault by a stranger. At several points during the proceedings, T retracted the allegations against S and her mother, then repeated them, then retracted them again. All professionals accept that her presentation is very complex and extremely worrying. A particular practical concern is that she will reach the age of 17 in the next three months at which point she will be beyond the age at which a care order can be made.

Meanwhile the three younger children remained at home with their parents. By agreement, S moved out of the family home.

On 19 July 2021, S was joined as an intervenor to the proceedings. His lawyers applied for T to give evidence at the fact-finding hearing. That application was opposed by the local authority and the guardian. After a Re W hearing on 19 November 2021, the judge came to the conclusion that T would not give evidence. Participation directions were also made in respect of S.

The findings sought by the local authority were set out under the following headings:

The fact-finding hearing was originally listed in December 2021 but had to be adjourned due to a number of practical and evidential difficulties. The original time estimate given by the parties had been 13 days. The court reduced the time listed to 10 days, then reduced it again to 9. The adjourned hearing listed in April 2022 had to be adjourned again and the fact finding finally went ahead in August 2022. In the event, it continued over twelve days in August, September and October during which fifteen witnesses gave oral evidence to supplement the extensive written evidence. At the conclusion of the evidence, the court directed written submissions with the intention of delivering judgment in November 2022. A request for the matter to be listed for oral submissions was refused. Instead, the court afforded the parties the opportunity to file supplemental submissions in response.

Before judgment could be delivered, however, U made allegations of a similar nature against S. It was therefore agreed that judgment would be delayed while the allegations were investigated and the local authority decided whether to seek further findings. In the event, it was decided that no further findings would be sought. The judge was then asked to hand down a written judgment (which could then be translated and explained with the assistance of intermediaries) but declined to do so because of shortage of time.

On 21 March 2023, the judge delivered an oral judgment in which he made substantially the findings sought by the local authority. Following the judgment, lawyers representing S initially invited the judge to clarify the judgment, but those representing the mother subsequently informed the court that they intended to appeal against the findings and the request for clarification on behalf of S was withdrawn.

On 9 May 2023, notices of appeal were filed on behalf of both S and the mother. On 7 June, permission to appeal was granted on both applications.

At the hearing of the appeal today, we have been told that the current position of the family is as follows. S is now living in independent accommodation. He does not visit the family home and has no direct contact with his siblings. T has a place allocated for her in semi-independent accommodation but is currently back living in the family home. U’s circumstances have deteriorated very alarmingly. She is currently detained in a mental health unit under section. The two younger children, V and W, who were briefly removed into foster care at the end of last year after U made her allegations, are currently at home.

At an early stage in the judgment, the judge explained what he was going to do in these terms (at paragraph 3):

He then referred to the law in these terms:

In paragraphs 18 to 40, the judge set out some but by no means all of the relevant history, focusing on T’s allegations. He then continued with these observations:

The judge then made some observations about aspects of the evidence relating to T’s alleged drug-taking, mixing with other young people, and exploitation. He continued:

The judge then concluded with his findings in these terms:

The two appeal notices put forward overlapping grounds expressed in different terms. On granting permission to appeal, I directed the appellants to consolidate the grounds. I am very grateful to their representatives for complying with that direction which has made our task much more straightforward.

The five consolidated grounds of appeal are:

The principal focus of the appeal has been on ground 1, supplemented by ground 5. On these grounds, the appellants have very strong arguments.

Perceived deficiencies in judgments in the family courts have led this Court to give guidance as to how the difficult task of judgment-writing should be approached. In Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 at paragraphs 59 - 60, Peter Jackson LJ gave this guidance:

Having cited this passage in Re C, D and E: (Care Proceedings: Adequacy of Reasons [2023] EWCA Civ 334, I continued (at paragraph 24):

Under ground one, it is asserted in particular that the judge failed properly to set out the evidence, or adequately analyse key features of the evidence, or record each party’s key case on the issues, or give a proper explanation for his findings. A number of crucial omissions from the judgment have been identified. The summary of background facts is incomplete – in particular there is no reference to the history of the family’s involvement with children’s services. The judgment does not identify the witnesses who gave oral evidence, let alone summarise what they said. It is therefore impossible to determine what weight has been given to any particular part of the evidence or how the findings have been made. There is no reference to the lengthy submissions prepared on behalf of the appellants, save a statement early in the judgment that the judge had read them, nor to the core issues as identified by counsel.

Particular criticism is made of the judge’s failures with regard to T’s evidence. The following points are made about this.

Furthermore, and equally concerningly, say the appellants, there is no account of the appellants’ evidence and only passing references to it. On behalf of the mother, particular complaint is made of the judge’s failure to mention difficulties that arose with interpretation of her evidence. On behalf of S, it is submitted that the judge erroneously described his case as being a simple denial whereas his case was much more nuanced. He accepted that something had happened to T but denied that he was the perpetrator. In his four witness statements, he set out in considerable detail evidence about his relationship with T and why it had deteriorated. Ms Weston KC on his behalf drew attention to what she described as his sympathetic and nuanced account of T’s behaviour. He also provided an explanation for the photograph. He gave oral evidence for nearly a day. There is barely any mention of his written or oral evidence at all in the judgment.

On behalf of the local authority, it is recognised that ground 1 is the “key ground”. Ms McMeechan and Mr Prout cite the well-known observations of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, in particular paragraph 114-115:

While acknowledging significant omissions, the local authority submitted that the judgment is nevertheless not devoid of reasoning and analysis and is sufficiently detailed to meet that standard and the guidance in Re B (Adequacy of Reasons). Despite severe time constraints, the judge covered much ground in his judgment. It is argued that it is “not unexpected” that judges in the family court will have to give judgment in less than ideal circumstances and for that reason this Court has introduced the practice of seeking clarification of the judge’s reasons. It is submitted that the appellants’ complaints about the omissions from this judgment could be met by putting such a request to the judge.

In written submissions on behalf of the guardian, trial counsel Ms Caroline Croft, whilst opposing the appeal, put her argument rather faintly, observing that the judgment “is not devoid of reasoning”. She accepted on behalf of the children that the judgment could have been fuller and that there were areas of evidence, circumstances and submissions which were not set out in the judgment. She surmised that these omissions may well be due to the fact that the judge was explicit that he did not necessarily view this judgment as the full judgment but as an overview that could be amplified if required. She accepted that “giving brief overview judgments is likely to be a practice which could not be encouraged” , but submitted that it was justified in the unusual circumstances in which this judge found himself and the practical difficulties he was facing. She adopted the same position as the local authority about clarification, submitting that the judgment is sufficiently indicative of the process the judge followed in arriving at his decision to warrant inviting the judge to give further reasons.

Ground five follows on from ground one. It is argued that the systemic impact of failing to prepare a written judgment and instead providing an ex tempore judgment in a very limited timeframe was highly adverse and amounted to a serious procedural irregularity. On behalf of S, it is submitted that by adopting this course, the judge was failing to comply with the clear guidance given by this court in the cases cited. On any view, it failed to meet the minimum standards required. On behalf of the mother, it is stated that she left court with little or no understanding of why the judge had reached his findings. On behalf of the local authority and the guardian, it is submitted that it is entirely normal for a judge to deliver a judgment ex tempore even in complex cases, that the judge had little choice but to proceed in the way he did, that it was not a procedural irregularity, and that any omissions can be tackled by a request for clarification.

As Lord Neuberger observed some years ago (in the first Annual BAILII Lecture in 2012):

It is widely recognised that judges sitting in the family court, where the pressure of work is very great and resources limited, face enormous difficulties and challenges. Plainly the judge was short of time on 21 March. But the course he took of delivering what he intended to be a relatively short overview judgment, with a view to the parties asking for further reasons if they so chose, is plainly irregular.

I agree with the local authority and the guardian that the practice of giving ex tempore judgments should not be discouraged. But this was not an ex tempore judgment. According to the definition given by the Incorporated Council for Law Reporting for England and Wales, an ex tempore judgment is one given orally at the conclusion of a hearing as opposed to being reserved and delivered (usually in writing) at a later date. This was a reserved judgment given orally six months after the conclusion of the evidence and four months after receiving written submissions. An ex tempore judgment after a short hearing where the issues are straightforward can be sensible and proportionate. But giving an ex tempore judgment after a case of this complexity would have been an unwise course in any circumstances.

I do not accept that the practice adopted by the judge of giving what he described as an overview with further reasons to follow if requested is consistent with the clear guidance given by this Court in the cases cited above. This ought not to have been an overview of the judgment, or an outline of the judgment, or a summary of the judgment. It was the judgment.

With respect to this experienced judge, he ought to have adopted the course suggested by the parties of handing down a written judgment. Cases of this length and complexity, in which serious findings are going to be made which will have a lifelong impact of members of the family, require a much more detailed analysis. I have cited on a number of occasions, and completely agree with, Lewison LJ’s observation in Fage, which in turn is a repetition of statements in earlier authorities, that “there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case”. Nor need the judge refer to every point of the evidence. As Peter Jackson LJ said in Re B, what is needed is an identification and analysis of the “key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned”. Regrettably that is not what happened in this case.

I agree with the appellants’ submissions that the omissions from the judgment are extensive and significant, in particular the absence of any analysis of the ABE interview, or any assessment of credibility and reliability, or any detailed analysis of the appellants’ evidence, or the evidence of the safeguarding lead, or any reference to Dr Mohammed’s report, or any real consideration of the detailed submissions made on behalf of the parties. There was some analysis of the reliability of T’s allegations, but given the omissions in the judgment it was inevitably incomplete. The analysis of the evidence was manifestly insufficient, with crucial aspects of it not mentioned at all, and the judge’s explanation for his findings was perfunctory. The assertion in the judgment that S’s case was a bare denial completely failed to do justice to the nuanced evidence he gave both in four statements and nearly a day of oral evidence, and the lengthy submissions filed on his behalf. Anyone reading the judgment – be it the parties, the public, an appellate court, professionals working with the family, or in later years the children themselves – would have no idea how the judge assessed the complex evidence he heard, why he preferred some parts of the complex and contradictory evidence and rejected others, or why he reached his conclusions on the very serious – life-changing – allegations.

In Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 I said, at paragraph 61:

Although the judgment in this case does contain some reasoning, I find that it falls into the same category. The deficiencies are on a scale which cannot fairly be remedied by a request for clarification. Where the absence of recorded analysis is on this scale, there is a danger that we would be asking him to carry out an ex post facto rationalisation for a decision he has made without proper analysis.

For those reasons I would allow the appeal on grounds 1 and 5. The judgment and findings must therefore be set aside.

In those circumstances, I can deal with the other grounds very briefly. As to ground 2, I would not be minded to allow an appeal on this ground standing alone. I am not persuaded that the way in which the judge identified and set out the legal principles gives rise to a ground of appeal. He failed to apply them in the ways set out in grounds 1 and 5 but ground 2 does not add to that argument. Grounds 3 and 4 involve an analysis of the evidence. Subject to what is said below, there may have to be a rehearing of all or some of the allegations. In those circumstances, it would be better to refrain in this Court from commenting on the evidence to avoid inadvertently influencing the outcome of any rehearing.

What should happen now? In particular should there be a complete rehearing? As Ms Taylor KC for the mother rightly says, the factors to be taken into consideration are the same as those relevant when determining whether to hold a fact-finding hearing in the first place. They were summarised by McFarlane J (as he then was) in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam), and approved and developed by this Court in Re H-D-H (Children), Re C (A Child) [2021] EWCA Civ 1192 and reiterated recently by this Court in Re H-W (Care Proceedings: Further Fact-Finding) [2023] EWCA Civ 149. In short terms, they are:

For my part, I have considerable doubt whether a re-trial would be justified applying those criteria to the current circumstances of this case. S and U are currently living away from home; by the local authority's interim plan T ought to be too, although she is not currently using the placement held open for her. The assessments which have been carried out so far point to the two younger children remaining at home. The threshold criteria with regard to T, and probably U, can surely be agreed on the basis that, in the somewhat archaic language of s.31(2)(b)(ii) of the Children Act 1989, at the relevant date they were likely to suffer significant harm as a result of being “beyond parental control”. I think it highly likely that the threshold criteria with regard to the younger children can also be agreed without the need for a full rehearing of the fact-finding. That was the view expressed on behalf of the mother and the local authority, in the event that the appeal was allowed. In written submissions, counsel for the guardian argued for a full rehearing. In oral submissions, however, Ms Kang, who appeared in place of Ms Croft, informed us that the guardian had reconsidered the matter and would now if at all possible wish to avoid a rehearing, providing a form of words for the threshold and a detailed care plan can be agreed and approved by the court that ensures the children are protected. There may then be an issue as to the order – care order, supervision order or no order – but that plainly is a matter for submissions.

These are not issues which this Court is equipped to resolve. If my Lady and my Lord agree, I would therefore propose that the proceedings be remitted to the Designated Family Judge for Central London to be listed for an urgent issues resolution hearing. I hope that all issues could be agreed without any need for a re-hearing which, as all parties agree, would be likely to cause further harm to this already very damaged family.

I conclude by expressing my thanks to all the professionals involved in this complex and very worrying case, counsel and solicitors, social workers, the children’s guardian, and also the many other professionals, some mentioned in the judgment, others not, who have worked tirelessly to help these children.

I agree.

I also agree