C, D and E (Care Proceedings: Adequacy of Reasons)[2023] EWCA Civ 334



  1. Tim Parker KC was instructed for the appeal by the respondent local authority which considered the circumstances where a request for clarification can be made following judgment.

  2. These were care proceedings concerning five siblings. The proceedings in respect of the elder 2 were concluded at the final hearing and were not the subject of the appeal. The court made care orders in respect of the three younger siblings and a placement order in respect of the youngest.
  3. The fact-finding hearing had started in October 2021, but was adjourned because of the ill-health of one of the advocates and was not completed until April 2022. On 21 April the recorder delivered a judgment in which he made a number of findings against the parents, including that the appellant had physically abused the four older children by punching, kicking, slapping and hitting them with a variety of implements, bathing them in cold water, and in respect of A forcing him to stay in his room without food. The recorder found that the father was aware of the mother’s abuse of the children but did nothing to stop it. The proceedings were then adjourned for further assessments and listed for a seven-day final welfare hearing in November 2022, almost two years after the start of the proceedings.
  4. At the final hearing, the local authority contended that the four older children should be made the subject of full care orders, with A accommodated in a residential unit and B, C and D in long-term foster care. In respect of E, the local authority proposed that she be adopted, and they filed an application for a placement order authorising her placement for adoption. The plans in respect of A and B were not opposed, and the welfare hearing therefore focused on the future of the three younger children. The father and the appellant proposed that C and D should be returned to their care, or alternatively, placed with a paternal aunt under a special guardianship order. With regard to E, they opposed the local authority’s plan for adoption and contended that, upon leaving the residential unit, E should remain in their care under a supervision order. The children’s guardian supported the local authority’s plans for all three children. Care and placement orders were made as set out above.

    The Appeal
  5. The mother sought permission to appeal which was granted on the grounds of insufficiency of reasoning, lack of a Re B-S analysis and lack of a welfare analysis.
  6. The local authority opposed the appeal on the grounds that no request for clarification had been made of the trial judge. Given the contents of the very lengthy judgment which ran to 177 paragraphs and the fully argued closing submissions served by the local authority and children’s guardian at trial, clarification should be sought before the appeal was determined.

  7. Paragraphs 17-24 of the judgment contain a precise, concise summary of the law to be applied in these applications including the recent Supreme Court decision H-W. They also judgments of the Court of Appeal concerning the content of judgments.
  8. Giving the lead judgment Baker LJ acknowledged that the practice of seeking clarification first considered in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 and first adopted in family cases in Re B (Appeal: Law of Reasons) [2003] EWCA Civ 881 [2003] 2 FLR 1035 was well established but subject to three important qualifications:
    (a) it must be used only for clarification, never to re-argue the case;
    (b) it is the responsibility of counsel and courts to be disciplined when making and responding to requests for clarification and to avoid routine requests for clarification running to a number of pages which are ordinarily inappropriate and  hugely burdensome; and
    (c) there are cases where the deficiencies in the judge’s reasoning are on a scale which cannot fairly be remedied by a request for clarification. Where the omissions are on a scale that makes it impossible to discern the basis for the judge’s decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal.
  9. In this judgment the deficiencies were on a scale, held the court, that could not be remedied by a request for clarification. The appeal was granted. In addition to the important guidance given above, the Court of Appeal made a further procedural point that once permission has been granted by the Court of Appeal, further steps in the appeal should only be taken with permission of the court.
  10. The full judgment can be read here.

Featured Counsel

Tim Parker KC

Call 1995 | Silk 2022

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