RE YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71

RE YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71

Sadia represented the mother in relation to these proceedings and the appeal.

Sadia French is Head of the family department at AK Solicitors having joined the firm as a Director in 2019.

Sadia regularly represents parties in high profile cases with complex issues which have often been reported due to the important points of law and guidance which are established in these cases.

Sadia represented the mother in relation to these proceedings and the appeal.  A link to the case is below:

Having first had knowledge of this case, Sadia talks about some other observations separate to the 5 key take away points or lessons to be learned from this case:

  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 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. Save in exceptional circumstances, there should never be repeated requests for clarification.
  5. Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

Q&A with Sadia French

Q: What the appeal was about?

Sadia: This was an appeal brought by the local authority against findings made in care proceedings concerning a young boy, named Y.  The court had carried out a 14 day fact finding hearing into the injuries suffered by Y.  The local authority was seeking 24 separate findings.  The court made a number of significant findings in relation to the injuries.  The local authority said that the clarification process had resulted in confusion and inconsistency that the integrity of the judgment could not be maintained and they were therefore seeking for the judgment to be set aside and for a rehearing.

Q: What were the parties’ intentions by asking so many questions?

Sadia: I cannot comment on the parties’ intentions however part of the confusion that arose in this case is that the judge gave an oral judgment on 31 July.  It was not until 6 October that the parties received a written version of the judgment.  Unfortunately, the written judgment omitted some parts of the oral judgment and introduced others so by that point there were already some inconsistencies between the two judgments.

Whilst the Court of Appeal did acknowledge that there was clearly some clarification and amplification required of the judgment the extent of some of the clarifications sought were clearly inappropriate.

Q: Did you agree with the necessity of the numerous requests for clarification?

Sadia: The first four requests for clarification came from the local authority and the guardian and these were all in August.  It was only after the written judgment was received on 6 October that clarifications were sought on behalf of the maternal grandfather and the father.  This was then followed by a request for clarification on seven points from the local authority.  The Court of Appeal said that the local authority was right to point out what was missing and to inquire whether the mother was covering up for the father.

As the representatives for the mother, we had not intended to seek any clarifications on the judgment or the supplemental judgment however we felt this was important to redress some of the balance in the clarifications that had been put by other parties and the implications they could have had on the judge’s findings.

The unfortunate result of the clarification process was that the parties then started asking for further clarifications rather than focussing on the judgment itself.  It was as if the clarifications then became evidence.  The difficulty was that there were changes to the written judgment which caused ambiguity. There is clearly a tension here with following the guidance on clarifications and ensuring that you protect and represent your client properly.

Q: The appeal court did not go into much detail or address the differences in the oral judgment and the verbal judgment which led to these problems.  Why do you think this is?

Sadia: Judges in the family justice system are working in a time where there are so many cases in court.  The levels are unprecedented and the backlog since Covid-19 has not eased. There is a shortage of judges and cuts to legal aid have resulted in more litigants in person making applications to court that perhaps would not have been made had they had legal advice.  Family court judges are in an unenviable position where their workloads are not getting any smaller.  Judges cannot cover every single bit of evidence but there was no doubt that the initial judgment given required clarification.  Workloads have allowed some decisions to become disassociated with the hearing.  This can result in the integrity of a decision becoming lost. Thankfully, for our client the Court of Appeal were clear that the trial judge had not undermined the findings in her original judgment as a result of the clarification process and the appeal was dismissed.