Court of Appeal make landmark judgement about witnesses’ rights to appeal in family law proceedings

Published: 22nd November 2016

A landmark judgement regarding the rights of witnesses to challenge adverse judicial findings in family related proceedings has been made by the Court of Appeal.

The Court of Appeal gave due consideration to whether a witness in family proceedings who is subject to judicial findings and who states that the unfair process in the lower court would breach their rights to a personal and private life under ECHR Article 8, can oppose the findings in the appeal made by the judge.

At the centre of the appeal is a judgement relating to fact finding in a case regarding allegations of sexual abuse against a number of family members, with the allegations being made by the older sibling of the children who were the alleged victims of the assault.

As part of the fact finding process, two male family members joined the children and their parents as parties, due to the fact that the older sibling had made specific sexual abuse allegations regarding those two family members. It was found by the judge that the allegations made by the older sibling weren’t able to be proven, after a full analysis during a lengthy hearing.

After dismissing the sexual abuse related allegations, the judge chose to include several criticisms and findings of the local authority, the professionals involved and in particular, a social worker (referred to as SW) and a police officer (referred to as PO).

The local authority, the social worker and the police officer were all granted permission to appeal, with SW and PO submitting a complaint relating to the findings of the judge, suggesting that they were in a joint enterprise with a foster carer and other professionals to collect evidence to prove that the allegations were true.

The judge suggested that SW was the instigator of the enterprise, persuading the other professionals to get involved. It was also found that the SW and PO lied about an important part of the case when they were in court. The judge also found that the older sibling, who made the original allegations, had been subject to a large amount of emotional abuse from the local authorities, particularly the SW and PO, during their professional discussions with her during the time they were obtaining evidence. It is known that the SW and PO went on to complain about the judge, suggesting that there was no reason for the judge to use such strong adjectives when explaining his findings, especially in a case that would eventually be made public.

The judge firstly delivered a judgement in bullet-point form, producing the first full draft of his judgement a month later. This judgement was circulated, leading to the court holding a directions hearing days later – during which there were submissions on behalf of both parties and the police. The judge determined that the recent draft judgement should be disclosed to the parties that were under scrutiny, in order for them to be able to produce their own submissions in preparation for the next hearing ten weeks later.

During the next hearing, the SW was present but not represented, but the PO and three other professionals involved were both present and represented, and each of the individuals in question had submissions presented on their behalf or by themselves. Two months after the hearing, the judge released an amended draft that contained changes that the judge had made.

At the next hearing, the court heard submissions regarding the identification of professional witnesses and anonymity of the judgement. The results of this hearing were that some professionals would remain anonymous; however the SW and PO would be named when the judgement is released publicly.

McFarlane LJ, giving the judgement of the court, concluded:

‘[I]t is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication.’

In relation to the general impact upon family law cases, McFarlane LJ said:

‘I regard the process adopted by the judge in the present case to have fallen short by a very wide margin of that which basic fairness requires in these circumstances. The occasions on which such circumstances may occur, or develop during proceedings, will, I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke, response to a highly unusual combination of the following factors:

a) a judge considering himself or herself to be driven to make highly critical findings against professional witnesses,


b) such findings have played no part in the case presented by any party during the proceedings,

and where

c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.’

He continued, saying:

‘Although what I have said with regard to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert witness, it will, I would suggest, be very rare that such a witness' fair trial rights will be in danger of breach to the extent that he or she would be entitled to some form of additional process, such a legal advice or representation during the hearing.’

The court eventually decided that there was a distinct lack of fairness within the trial with regard to the points that the judge believed worked against the local authorities, SW and PO, determining that those elements of the judgement should not be taken into consideration, being regarded as if they had never been made, as they no longer have any validity.

The team at K J Smith Solicitors has many years of experience in dealing with all matters relating to family law including finances and divorce, domestic violence, child residency, cohabitation disputes and family mediation. For more information or to discuss your circumstances with a member of our team, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford) or 01494 629000 (Beaconsfield).

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