Clarification does not invite another bite of the cherry!

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https://www.bailii.org/ew/cases/EWCA/Civ/2024/71.html

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This is a non-accidental injury case. The Local Authority started care proceedings in January 2022. Y was made subject of an Interim Care Order. The Court listed a fact-finding hearing in which the Local Authority sought findings that Y’s fractures and bruises as identified on admission to hospital, and Y’s bruises and abrasions shown on the photographs taken were inflicted by one (or more) of the following: the mother, the father, the maternal grandmother, the maternal grandfather or, in the case of the injuries seen on admission to hospital, a family friend. Moreover, the Local Authority were seeking findings that in the event that the injuries were not caused by the mother and/or the father, they failed to protect Y and both failed to seek timely medical attention for the injuries.

A Fact-Finding Hearing took place over 14 days between April and July 2023. On 31 July 2023, the judge delivered an oral judgment in which she found that all of the injuries had been inflicted by the father.

Initial requests for clarification about the failure to protect finding and the reason as to why the Judge had concluded the Father was the perpetrator were submitted during August but the judge declined to respond until the transcript of the judgement was produced.

At a hearing in October 2023, the parties sought eight additional clarification of the judgment. In one of these clarifications, the Mother identified certain aspects of the evidence and invited the Judge to reconsider her findings. The Judge responded to these clarification requests a few days later.

At a further hearing in November 2023, the father, supported by the local authority and guardian, sought yet further clarification of the judgment and even sought findings that had not been raised previously, made fresh submissions in support of those findings and warned that, if the judge declined to make the clarifications sought, an application would be made for appeal. The judge responded to those requests the same day.

Eventually, the Local Authority appealed against the judge’s findings and sought a re-hearing.

The court of appeal dismissed the appeal on the basis that many clarification requests were wholly unreasonable. The Court pointed out that this case illustrates that the clarification procedure in family cases is still being misused and the following lessons should be learned moving forward:

1) A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child's welfare needs.

(2) When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.

(3) Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.

(4) Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document.

(5) Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings

(6) If a judge proposes to 'clarify' a finding, she should ensure that the clarification clarifies rather than obscures what is said in the judgment. If, which should only happen very rarely, a judge intends to modify or withdraw what is said in the judgment, the clarification should make that explicit and should explain why the judge has changed her mind. Otherwise this court will proceed on the basis that the approved transcript of the judgment contains the judge's findings and that what is said by way of clarification is intended to add to but not to change those findings.

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