Laura Briggs examines Re W (A Child)  EWCA Civ 1140
Articles | Mon 5th Dec, 2016
Re W (A Child)  EWCA Civ 1140
This case includes a relatively rare finding by the Court of Appeal that a Deputy High Court Judge had committed a breach of the Article 8 rights of two individuals, a social worker and a police officer.
The hearing at first instance lasted 3 weeks. The court as part of the hearing considered whether allegations of sexual abuse against family members were proved. The ‘complainant’ was a child, C. The parties were as one would expect, the LA, parents and children. The court heard evidence from witnesses including the social worker and police officer (“SW” and “PO” respectively).
At the conclusion of the hearing and to the surprise of those present at court, the Judge included in an initial, ‘bullet point’ judgment a series of scathing findings against SW and PO. Whilst the specifics of those proposed findings were not repeated in the Court of Appeal judgment, it is apparent from the judgment that the findings were of such severity that they would be personally as well as professionally devastating to those individuals and included causing emotional harm to the child.
After the delivery of the bullet point judgment, the Judge allowed SW and PO to receive some limited disclosure and to attend a hearing with legal representation, at which they could make submissions in respect of the findings made. The judgment was amended as a result of those submissions, but the essence and strength of the criticisms remained, with the attendant professional and personal consequences for the witnesses.
PO, SW, and LA appealed to the Court of Appeal.
But what was being appealed? Not the substantive decision of the court. And who was appealing? In the cases of SW and PO, not a party to the hearing. As McFarlane LJ said, there were a number of “substantive and procedural legal landmines, the detonation of any one of which is likely to prevent the appellants reaching their goal”.
What follows is an analysis of who has standing to appeal and from what.
s31K of the Matrimonial and Family Proceedings Act 1984 states that “any party” may appeal to the Court of Appeal. But a “party” turns out to be a surprisingly loosely defined legal concept. The County Courts Act 1984 defines “party” as “every person served with notice of, or attending, any proceeding, whether named as a party to that proceeding or not”. The Senior Courts Act 1981 defines it as “any person who… has been served with notice of, or has intervened in, those proceedings”. There is no definition in the Children Act 1989, although FPR r 12.3 seeks to define “who the parties are” by identification as “applicants” and “respondents” to each type of application. The Court of Appeal has permitted appeals to be heard from ‘intervenors’. An examination of other authorities in the civil sphere revealed that any person, provided they are granted leave of the court, may appeal a decision, even if they were not a party to the proceedings before the lower court.
In this case, PO and SW not only gave evidence at the hearing, they were subsequently given disclosure (copies of the draft judgment) and attended court with legal representation at the invitation of the court to make representations in respect of the judgment. The Court of Appeal found that PO and SW were intervenors “and therefore additional parties to the proceedings under r 12.3 (3) and (4), with respect to the stage of the proceedings relating to the terms of the judgment.
The second issue was whether the findings represented a decision of a type that can be appealed. s31K of the Matrimonial and Family Proceedings Act 1984 states that an appeal can be brought from any “decision of the court” with which the party is “dissatisfied”. There have been tensions in earlier authorities on the issue of whether it is possible to appeal from an individual fact or reason given by a Judge in the judgment, without seeking to overturn the outcome of the process:
“if the decision of the court on the issue it has to try (or the judgment or order of the court in relation to the issue it has to try) is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like.” 
It was argued on behalf of PO and SW that the factual findings made against them here were of a different category entirely because they were not necessary for the judicial exercise, procedurally they were made in a vacuum, without the allegations being put to the witnesses in court and finally they had serious and far-reaching consequences for the individuals concerned outside of the proceedings. SW had been suspended from her job.
It was this latter argument, interference with private life, which provided an entry point for SW and PO.
The Court of Appeal found that the Article 8 rights to private life of SW and PO were engaged – Article 8 includes a right to establish employment relationships and this case provides a summary of the authorities supporting that proposition at paragraphs  to . The procedural aspect of Article 8 requires “the decision-making process involved in measures of interference must be fair and such as to ensure due respect [for] the interests afforded by Article 8” (paragraph 111 W v UK (1987) 10 EHRR 29) and the procedural requirements of Article 8 are examined by the Court of Appeal in this case in the subsequent paragraphs. In the interests of brevity, those requirements can be summarised as a requirement that any decision which interferes with a person’s Article 8 rights must be taken fairly.
Fairness included, in the Court of Appeal’s judgment, “giving a party or witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them” paragraph , which included, the Court held, putting the case that was to be found to the witness.
On examination of the procedure adopted at first instance in this case, the Court of Appeal found that the Article 8 rights of SW and PO (and the Article 6 rights of the LA) had been breached.
Because the appellant’s ECHR rights had been breached by a judicial act, the only available route to seek a remedy was by way of appeal: By virtue of s9(1) of the Human Rights Act 1998, a claim following breach of a Convention right in respect of a judicial act may only be brought by exercising a right of appeal. The Court of Appeal therefore found that where a judge’s findings themselves are capable of being held to be ‘unlawful’ under HRA 1998 they are the proper subject of appeal, regardless of whether or not it is a ‘decision’, ‘determination’, ‘order’ or ‘judgment’ [paragraph 118].
Guidance is provided in this judgment as to the correct approach where it becomes clear that adverse findings ‘of significance’ ‘outside the known parameters of the case’ may be made against a party ‘or a witness’ at paragraph , which states that consideration should be given to the following:
- a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence.
- b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material.
- c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.
A summary of the findings in this case in respect of the breach of Article 8 rights of SW and PO are contained in paragraph  of the judgment, which is required reading for anyone hoping to rely on this authority to challenge findings against a witness in the future. This is followed by a clear statement that this decision is not to be read as ‘a call for the development of ‘defensive judging’; on the contrary judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on issues that are raised in each case before them.
Finally, readers of the judgment are invited to note that the Court of Appeal is not suggesting any change in approach to expert witnesses who attend court to give evidence – unlike the professional witnesses criticised in this case, experts will have had full disclosure and their evidence will be well within the ‘four corners of the case’, unlike the events of the instant case in which the findings strayed well outside the substantive issues explored by the advocates in evidence.
 Waller LJ in the leading authority Cie Noga SA v Australia and New Zealand Banking Group  EWCA Civ 1142.
The judgment is available here.