Clarification of a fact finding Judgement

Re: I (Children) [2019] EWCA Civ 898 (24 May 2019)This case concerned a 15 week old baby with two skull fractures. The Judge made a finding regarding the second fracture. The case is reported due to the events that occurred between the fact finding hearing and the Judgement. It has become routine practice for the Judge to defer Judgement after a fact finding hearing and to circulate a draft judgement to the advocates ahead of a hearing formally handing that Judgement down. This is to enable typographical errors to be corrected and for clarification to be sought.Within the care proceedings the mother had stuck to her account of how the baby had been injured. This is despite the children telling the social worker a different account. One of the children gave a further account between the fact finding and the draft judgement being circulated.The draft judgement was circulated, with the usual invitation to correct errors or seek clarification. Mother’s counsel sought extensive clarifications, challenging the Judge’s conclusions, and the mother then filed a further unsolicited statement, where she formally changed her account in line with her eldest child’s account.The mother was granted leave to appeal on the basis the Judge had failed to determine how the injuries were caused. The Judge had clarified her findings after hearing from her counsel, but the new evidence had not been tested.It was stated on appeal that sending a draft judgement is to enable typographical or similar errors to be corrected. It is not intended to give a further opportunity to reopen or reargue the case. An invitation to go beyond just correcting errors is exceptional, and the other parties must be given a chance to object. The appeal was allowed and to be re-heard before a new Judge. Mother’s new evidence needed to be tested. Fresh evidence prior to a judgement being handed down should never be admitted as part of the clarification process. A party can apply for a Judge to delay handing down judgement. In this case there should have been a directions hearing regarding the new evidence. A re-trial is not inevitable, as a party changing their account after seeing draft judgement needs to be taken into account.It has unfortunately become quite commonplace for parties in family cases to go beyond the realms of clarification when in receipt of a draft judgement. In this case LJ King stated this can “on occasion, be frankly confrontational and disrespectful in tone”. It is hoped this appeal judgement may help curb this unhelpful practice. Where an advocate fears material omissions in a Judgement, this should be drawn to the court’s attention, and an opportunity to consider this given, rather than immediately making an application to appeal.We are able to provide advice and representation in care proceedings, and we specialise in non-accidental injury cases. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986