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Judicial Reasons

                                                                                   

Judicial Reasons in Family Law Proceedings

                                                                                   

Justices' Reasons

 

 

1.  Rules 21 (5) & (6) of the Family Proceedings Courts (Children Act 1989) Rules 1991 and Rules 12 (5) & (6) Family Proceedings Courts (Matrimonal Proceedings etc.) Rules 1991 both state the following:

 

"(5) Before the court makes an order or refuses an application, the justices' clerk shall record in writing-

(a) the names of the justice or justices constituting the court by which the decision is made, and

(b) in consultation with the justice or justices, the reasons for the court's decision and any findings of fact.

 

(6) When making an order or when refusing an application, the court, or one of the justices constituting the court by which the decision is made, shall state any findings of fact and the reasons for the court's decision."

 

 

2.  Section 14 of the Family Court Bench Book sets out detailed guidelines for justices as to how best to give their reasons for decisions in family matters. The justices are required by Rule 21 (6) of the Family Proceedings Courts (Children Act 1989) Rules 1991 to give reasons for their decisions and state clearly their findings of fact in order to demonstrate how the court arrived at its conclusion. The reasons are given so as to enable the parties in the case, their representatives and the child, when old enough, to understand why a particular decision was reached. This in turn is of assistance to any other court looking at the decision at a later hearing, upon transfer or on appeal.

     

Section 14 is intended to assist justices in how they structure their reasons in the main areas of family work.  The justices are instructed to apply the same principles to less common areas of work and to consult their clerk for specific advice.

 

Guidance is provided on the points to be considered for:

 

• Emergency Protection Orders
• Interim Care/ Supervision Orders
• Care/ Supervision - Final Orders
• Request for leave for Experts
• Contact Orders
• Prohibited Steps/ Specific Issue Orders
• Parental Responsibility Orders
• Residence Orders
• Secure Accommodation Orders
• Special Guardianship Orders
• Placement Orders
• Adoption Orders
• Occupation Orders and Non-Molestation Orders
• Welfare Checklist - Children Act 1989
• Welfare Checklist - Adoption and Children Act 2002

 

These ‘checklists' can act as an aide-memoire when the justices come to draft their reasons with their clerk.  There justices can include in their reasons some of the examples of pronouncements that are found contained within some of the above ‘checklists.' 

 

Towards the end of the ‘checklists' the justices are offered guidance on ‘The Assessment of Maintenance.'  This is to ensure that any proposed order allows for a fair distribution of income ‘which is as just as possible to both households in the light of all the circumstances and the statutory criteria.'  The guidance is to make a nominal order for maintenance if the payer is in receipt of state benefits.

 

The justices are reminded in Section 14 that a judge hearing an appeal will be examining their reasons to see whether their decision can be said to have been made ‘under a mistake of law, or in disregard of principle or under a misapprehension of fact, or to have involved taking into account irrelevant matters or omitting from account matters which ought to have been considered, or to have been plainly wrong, i.e. outside the generous ambit within which a reasonable disagreement is possible...'

 

3.  The Structured Decision-Making Pro-forma is provided for at the end of Section 14.  It is accepted that this form is not a fixed template for all cases in family proceedings.  The form provides guidance as well as headings under which the reasons given by the Magistrates can be set out.  These headings are as follows:

 

• Nature of Proceedings
• Agreed Facts/ Facts not in dispute
• Disputed Facts/ Issues
• Findings of the Court
• Statutes and Case Law
• Welfare Report Considered
• Means Report Considered
• Documents Attached
• Reasons for decision in relation to amount of maintenance
• Threshold Test [Public Law cases only]
• The Welfare Checklist
• The Requirements of the particular section under consideration
• Human Rights
• Orders
• Reasons for [No] Order(s)

 

4.  Link to detailed information on Magistrates providing reasons in family cases and the Structured Decision Making Pro-forma :

 

           

      The Structured Decision Making Pro-forma is as set out below:

 

 

 

 

 

24 Family Court Bench Book Section 14 • Reasons and Welfare Checklist

 

STRUCTURED DECISION-MAKING PROFORMA

 

Family Proceedings Court

 

REASONS IN FAMILY PROCEEDINGS

 

DATE
APPLICANT
RESPONDENT
OTHER PARTIES
NATURE OF PROCEEDINGS
SECTION 8 ORDERS
FINANCIAL ORDERS
CARE PROCEEDINGS ORDERS
OTHER PROCEEDINGS
JUSTICES
(1)
(2)
(3)
LEGAL ADVISER
SITTING AT
PARTIES	REPRESENTED BY
GUARDIAN / CHILDREN & FAMILY REPORTER
DURATION OF PROCEEDINGS
AGREED FACTS / FACTS NOT IN DISPUTE (Summarise the history & agreed facts)
DISPUTED FACTS / ISSUES
FINDINGS OF THE COURT   (Assess the evidence & witnesses; explain which witnesses were believed and which were not & why; explain what expert evidence you believed)   STATUTES& CASE LAW   (If you were referred to any statutes or case law, state how you applied them to the case)   WELFARE REPORT CONSIDERED     YES/ NO MEANS REPORT CONSIDERED   YES / NO DOCUMENTS ATTACHED   Welfare Report Means Report Notes of Evidence Other   REASONS FOR DECISION IN RELATION TO AMOUNT OF MAINTENANCE   (Make findings with reasons in respect of each of the relevant statutory criteria)   REASONS FOR DECISION IN RELATION TO OTHER CASES   THRESHOLD TEST (PUBLIC LAW CASES ONLY)   Do you find the threshold test proved? What are your findings? At what date are the threshold criteria to be applied?   What kind of harm has the children suffered or will suffer?   Is the harm existing or future?   Is it attributable to the care or lack of care by parents?  If so why?   Are you of the opinion that the child is beyond parental control?  If so, why?   THE WELFARE CHECKLIST   (a) The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)   (b) Their physical, emotional and educational needs   (c) Likely effect on them of any change of their circumstances   (d) Their age, sex, background & any characteristics that the court considers relevant   (e) Any harm which they have suffered or are at risk of suffering   (f) How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs   (g) The range of powers available to the court   THE REQUIREMENTS OF THE PARTICULAR SECTION UNDER CONSIDERATION HUMAN RIGHTS   In making the order(s) in this case the court has considered the rights of the parties and the child(ren).  In doing so the following rights are engaged:   The court has determined that the order is compliant with the principles of the Human Rights Act 1998 because:   The court has the power to make such an order as is prescribed in:   The order pursues the legitimate aim of protecting the health or morals of {INSERT NAME(S) or protecting the rights of others, namely:   The order is proportionate in that it is the minimum intervention necessary to ensure that:   The parties and the child9ren) have rights to an independent & impartial tribunal, disclosure, an adversarial hearing, reasons and decisions made within a reasonable time.  The court concluded that:   SECURE ACCOMMODATION ORDERS ONLY   The court has considered the right to liberty and security of the child under Article 5 European Convention of Human Rights.  The court is satisfied that the making of this order comes within the exception to the right to liberty under Article 5(i) (d)   ORDER(S)   SECTION 8   FINANCIAL   OTHERS EG CARE   REASONS FOR (NO) ORDER(S)     Explain why it is better for an order to be made or not made.  State the recommendation of the children's guardian, and if it is not being followed, why.

 

JSB Family Bench Book

5.   The Family Bench Book contains information and guidance for judges.  It is ‘intended as a point of first reference for the inexperienced judge who needs to tackle the difficult and sensitive issues which arise in family cases.'  It is aimed particularly at judges in the county court and contains what are described as ‘useful hints' distilled from practitioners' experience.  It suggests questions that judges might find it helpful to ask themselves.

 

6.   The chapters of the Family Bench Book are entitled:

 

• Cases you should and should not do;
• Control of the court;
• Human rights;
• Injunctions and committals;
• Children in private family proceedings;
• Children in public law cases;
• Adoption;
• Representing the child in private law;
• Ancillary relief;
• Giving judgement;
• Costs;
• Appeals.

 

Link to the individual chapters.

 

 

7.  There is guidance for Judges at paragraph 12.1 of the JSB Family Bench Book, as distinct from the Family Court Bench Book.  Paragraph 12.1 states that Judges in the Court of Appeal who have been elevated from the Family Division frequently make two points: make your reasons clear so that your decisions can be supported and adopt a structure so that nothing essential is omitted. This section of the Family Bench Book provides detailed guidance on giving judgment (and includes a sample judgment).

 

 

8.  Chapter 14 deals with appeals from the district judge and appeals from the circuit judge.  The Bowman Report also receives a mention in chapter 14.  Link to full text of chapter 14.

 

        

9.  The Justices' Clerks Society & the Magistrates Association have published guidance in November 2007.

 

Practice Points

 

 

 

1. When do you need leave to appeal?

 

(i) Most orders from the FPC must be challenged by notice of appeal within 14 days. In the case of interim care or supervision orders this time limit is 7 days. Appeals from the FPC can be done by way of case stated to the High Court under s. 94(1) of the Children Act, Ord 55, r (1)(2) Rules of the Supreme Court and r 4.22 Family Proceedings Rules 1991 SI 1991/1247.

 

(ii) Any party may appeal an order given by a DJ in a county court to a judge on notice. Any notice must be issued within 14 days of the order or decision appealed against and served at least 14 days before the day fixed for the hearing of the appeal. The Family Proceedings Rules 8.1 and 4.22 deal with appeals from the DJ in the county court in family proceedings.

 

(iii) If appealing from either the county court or the High Court, parties can serve notice of appeal within 14 days of a decision to the Court of Appeal. Ord 59 Rules of the Supreme Court governs this procedure.

 

(iv) Appeals may occasionally ‘leapfrog' from the High Court direct to the House of Lords by certificate granted under s. 12(1) of the Administration of Justice Act 1969.

 

2. What can the appellate court do?

 

(i) The county court may be deal with an application to discharge the order. The county court has the power to review interim, ex parte or interlocutory orders or to rehear its own decisions where there has been no error of the court.

 

(ii) The High Court may discharge an order, review interim, ex parte or interlocutory orders or rehear its own decision where there has been no error of the court, s 17 of the Supreme Court Act.

 

 3. How is the hearing conducted?

 

An appeal to the High Court is held in open court before a single judge.  The notice of appeal from the FPC to the High Court must be set out in writing stating the grounds upon which the appellant relies, FPR r 4.22 (2)(a).  The misdirection or lack of reasons given must be specified.  The hearing may be dealt with by a circuit judge sitting as a Deputy High Court Judge. 

 

The appeal is conducted as a rehearing in that the judge will review the whole of the evidence and review the manner in which the magistrates carried out the balancing exercise.  The court can receive further evidence on questions of fact.  This can be done orally, by deposition or by way of affidavit, RSC Ord 55, 7(2).

 

4. Are there any decisions where the FPC doesn't have to give reasons?

 

Yes, e.g. reasons are not needed for refusing an adjournment or a transfer.

 

5. Can the magistrates tell you what the decision is and give reasons later?

 

This should be avoided, but if all the parties agree then it is unlikely to be something that can be objected to later on in proceedings.  It is particularly appropriate when in front of a DJ (formerly, stipendiary magistrate).

 

6. The court has made a decision but not given very good / hardly any reasons but it is probably a perfectly justifiable decision, should I appeal?

 

Probably not.  There is little point in appealing since the appellate court can make its own decision if it is that obvious from the papers.

 

7.The role of the advocate: should I tell the court in advance if I am going to appeal?

 

(i) Yes, if you think it whatever decision the court makes one party or the other may find it necessary to appeal, for example, because there is an obvious point of law or public importance. The important thing to avoid is it looking like a threat to the court. It may be more tactful simply to mention it to the clerk in the magistrates court so that they can be extra careful about the note they are taking.

 

(ii) Otherwise no, you should not tell the court in advance that you are thinking of appealing unless something develops during the hearing that gives rise to a cause for concern.

 

8. What sort of defects in reasons give rise to good arguments for an appeal?

 

No reasons given; insufficient explanation or reasons where there are important findings not made or explained, e.g. the court goes against expert evidence, some evidence goes unchallenged, the court goes against the CAFCASS officer or against the wishes and feelings of a competent child without adequate explanation.

        

 

Case Summaries

 

 

RE M (A MINOR) (1981) Fam Law 58

 

Balcombe & Sheldon LJJ

 

Balcombe LJ said that the reasons the instant court received could be written in five lines.  They were short and to the point but did not give the court help to which the court was entitled. The court was entitled to expect better reasons than those given by the justices.

 

Sheldon LJ said that justices should remember that a party aggrieved by their decision may wish to challenge the order in the Family Division or by other appellate procedure.  When it was necessary to give reasons it was essential in the interests of all parties, especially in dealing with the upbringing of children, that justices' reasons be sufficient to enable the court to examine their decisions.  The principal advantage for the court at first instance was the opportunity of seeing the parties at first hand and examining oral evidence.  The appellate court did not have this advantage and needed to know the justices' conclusions on the evidence.  In his opinion justices must always give their assessment of the characters of all parties concerned as to why they accepted or rejected the evidence.

 

 

RE H (A MINOR) (CARE PROCEEDINGS) [1992] 2 FCR 330

 

Fam D Thorpe J

 

The magistrates were required by 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991 to state their findings of fact and the reasons for the court's decision.  As a matter of practice, magistrates should take care to state their assessment of the credibility and reliability at least of the most important witnesses.  Also there was good sense in an express application of the checklist in s 1(3) of the Act to the particular facts of the individual case. 

 

In this case the justices' reasons ran to 11 pages and were divided into 8 separate sections and amply demonstrated the conscientious care which had been taken in their determination..  ‘Justices are not to be expected to produce polished judgments such as might be expected of a reserved judgment from a High Court Judge.'

 

 

HILLINGDON LONDON BOROUGH COUNCIL V H [1992] 2 FLR 372

 

Fam D Johnson J

 

‘In this case the findings of the justices and their reasons, so far as concerns the making of an order for costs, were announced by them in the following terms:

‘We adopt the guardian ad litem's view of the local authority's actions and order the father's full costs to be paid by the local authority ..'

 

As I have said I have read the report of the guardian ad litem and such information as I have which would indicate her view of the local authority's actions now on several occasions and I have to say that

I do not understand what findings the justices believed they were making or what reasons they were giving for their decision in that brief statement which I have just quoted in full.

 

In accordance with the former practice but, as I hold, contrary to what should now be the practice under the Children Act 1989, the justices have provided further reasons extending to three pages.  ... I hold that on an appeal to the High Court under the Children Act 1989 the only findings of fact and the only reasons that may be relied on to support the decisions of the justices under appeal, are those announced by the justices in accordance with the rule to which I have referred.  Undoubtedly in applying this rule the High Court will seek to avoid undue rigidity and technicality.  Nonetheless, it seems to me that the rules require the justices to record the facts which they judged to be significant in the making of their decision and also the salient considerations which have led them to their conclusion.'

 

 

OXFORDSHIRE COUNTY COUNCIL V R [1992] 1 FLR 648

 

Fam Div Douglas Brown J

 

‘Magistrates must learn new skills and learn them quickly although no one expects then to give judgments in the way that a judge does.  A good starting-point is the statutory framework within which they are working... in part IV cases regard has to be had to the s 1(3) circumstances.  Using the statutory criteria as a checklist the findings of fact and reasons can be built around them without undue length.  A useful approach ... pro forma for both findings of fact and statements of reasons.  The various headings by way of example are these: 1. Facts not in dispute; 2. Disputed facts; 3. Findings of the court that is facts which the court found proved; 4. the extent to which witnesses including the applicant or respondent were believed or disbelieved if that has not already been stated under 3, and the information upon which the court relied in reaching its decision.  Then there is a section which deals with the citation of authority by the parties, whether a welfare report has been considered and the prof forma is dealing with cases where, specifically, a welfare check-list has to be considered and the suggestion is made that each of the considerations (a) to (g) under s 1(3) are set out individually, and the judgment or the findings of fact set out under each subparagraph.'

 

 

RE B (PROCEDURE: FAMILY PROCEEDINGS COURT) [1993] Fam Law 209

 

Balcombe J

 

‘I would, however, make a few comments upon the justices' reasons bearing in mind that the rule to which I have referred now requires justices to give oral reasons at the time when they make an order or refuse an application.  Let me say at once that it would be quite unrealistic to expect justices to be able to give an extempore judgment in the same way that a professional judge can do.  Nevertheless it may be a help to them to have it pointed out that it would be helpful both to the parties and indeed to any appellate court that may have to consider their reasons thereafter, if they first set out the relevant facts, either in chronological order or by whatever headings they think convenient; but in any case making it clear which facts were not in dispute and giving their findings on any matters which may be in dispute. ..Then when it comes to giving the reasons for their decision, it would, I think, also be helpful if they set out the factors that they have brought into the balance, even if some are clearly obvious'.

 

 

W V HERTFORDSHIRE COUNTY COUNCIL [1993] 1 FLR 118

 

Fam Div Booth J

 

‘Reasons and findings of fact must be recorded and stated when the court makes any order or refuses any application.  There is no exception to this mandatory requirement.  In this respect and interim order is no different from an order which is intended to be long term.  The decision-making process is always the same.  In each and every case the parties should be able to be confident that the court has followed the required steps and has reached its decisions in the proper manner and the parties are entitled to know the justices' reasons and their findings.

 

 

ESSEX COUNTY COUNCIL V B [1993] 1 FLR 866

 

Fam Div Douglas Brown J

 

The object of r 21 of the Family Proceedings Courts (Children Act 1989) Rules 1991 was to ensure that the magistrates took time at the end of the hearing before they announced their decision, to address the issues and formulate their reasons, which were recorded in writing and given to the parties.  Unstructured and impromptu reasons, given by the chairman and taken down by the clerk, were insufficient, as were two sections referred to as ‘facts in dispute' and 'facts not in dispute' which were not prepared at the time of the hearing.  There needs to be a proper analysis of the welfare checklist brought to bear on the particular relevant facts of the case

 

 

RE D (CONTACT: INTERIM ORDER) [1995] 1 FLR 495

 

Fam Div Wall J

 

This case demonstrates, yet again, the need for this court to remind justices that they must set out fully and clearly their reasons for reaching all their decisions.  Those reasons must be in clear and unambiguous language, so that the parties and if need be this court can understand what they have done and why they have done it....

In my judgment, it is unacceptable for any court to make a bland statement that it has ‘considered all aspects of the welfare checklist' without further particularisation unless, elsewhere in the course of its judgment or reasons, it has, in considering the evidence or in making findings, dealt in detail with the relevant aspects of the checklist, thereby demonstrating that it has applied it mind to the relevant factors ...Justices are obliged to apply the checklist in every case to which it applies and in my judgment they are well advised to go through it in their reasons in the format for justices' reasons referred to in Oxfordshire.. so that the parties and this court can see clearly those aspects to which they have given weight and those which they thought either did not apply or to which they have given lesser weight.  In a case such as the present, where the justices' reasons are otherwise inadequate a bare assertion that the checklist has been considered is unacceptable ...As this court has stated on many occasions, where the reasons are inadequate the decision is flawed and the inevitable result is that the appeal must be allowed.  The door is thus open to the exercise of my discretion.

 

 

RE M (SECTION 94 APPEALS) [1995] 1 FLR 546

 

CA Butler-Sloss and Kennedy LJJ

 

‘The principles in G v G should in my view broadly apply to s 94 appeals.  One must not overlook, however, that the appellate court has to be satisfied that the trial court took into account all the relevant matters and did not take into account any irrelevant matters in the balancing exercise which it carried out.  Consequently where magistrates demonstrate in their reasons that they have correctly approached the exercise of discretion and have considered all the relevant facts and have correctly directed themselves as  to the relevant criteria under the Act, an appellate court is not free to substitute its own view of the case unless the court below has exceeded that generous ambit within which reasonable disagreement is possible and has come to a plainly wrong decision.

 

If, however, the magistrates' reasons omit important factors, not peripheral matters of little importance, or fail to give reasons for disagreeing with a recommendation made by the court welfare officer as in this case, or their reasons are unclear on aspects which are crucial to the decision, an appellate court would be justified in looking with particular care to see if they have correctly carried out the balancing exercise.  An appellate court might be less ready to assume that magistrates have taken relevant factors into account if they have not referred to them than it might in the case of an experienced judge.  But reasons are not intended to be a judgment and an appellate court should be slow to interfere with magistrates' decisions as it would be to interfere with any other tribunal charged with the duty to make decisions in the exercise of its discretion.'

 

 

RE WB (RESIDENCE ORDERS) [1995] 2 FLR 1023

 

Fam Div Thorpe J

 

Justices sought to provide the judge with further reasons to justify their determination.  The court held that it was ‘quite inappropriate ... to communicate with the appeal court, particularly in the submission of considerations which they believe justify their determination.'

 

 

 

 

  

T v W (CONTACT: REASONS FOR REFUSING LEAVE) [1996] 2 FLR 473

 

Fam Div Connell J

 

The applicant was not the natural father of the child but had lived with the mother for a significant period during the child's life.  There was some contact between the child and the applicant after the couple's separation, but in 1995 all contact ceased at the instigation of the mother.  The applicant applied for leave to apply for contact with the child.  The magistrates having heard evidence, tested in cross-examination, and submissions, refused the applicant's application for leave but failed to give their reasons for such a refusal.  The applicant appealed.

 

The appeal was allowed.  The application before the court for leave was an important one and the applicant was entitled to know why his application had been refused.  The failure to give reasons was a very serious deficiency and this case did not fall within the category of quite exceptional cases where reasons need not be given.

 

 

LONDON BOROUGH OF CROYDON V R [1997] 2 FLR 675

 

Fam Div Wall J

 

The justices failed to give reasons on the matter of parental capacity.  It was held to be inescapable under the Family Proceedings Courts (Children Act 1989) Rules 1991, r 21(5) that justices' reasons had to be given for the decision.  The application before the justices for directions was important and one for which they should have given reasons. 

 

‘These rules, and r 21 in particular, have been considered by the High Court on numerous occasions, and in terms of reported cases the failure to comply with r 21(5) has been the principal basis upon which appeals from justices sitting in the family proceedings court have been allowed.  All the judgments from this court have stressed the need for the parties to know why the application before the court had succeeded or failed and for this court to understand the reasoning behind a decision, so that this court can decide whether or not the exercise of the justices' discretion has been appropriate, within G v G.'

 

 

RE P (CONTACT: DISCRETION) [1998] 2 FLR 696

 

Fam Div Wilson J

 

The requirement under the FPC (CA1989) Rules 1991 that a decision to make or refuse an order under the Children Act 1989 could only be announced in court after the findings and reasons in support had been recorded in writing was an onerous one.  It was important that the appellate court did not take too pedantic an approach to a document produced in such circumstances.  The key issues for the appellate court were whether the legal principles had been correctly identified, whether the material factors, particularly any under s 1(3) had been afforded sufficient weight in the balancing exercise, and whether the decision was plainly wrong.

 

HACKSHAW v HACKSHAW [1999] 2 FLR 876

 

Fam Div Wilson J

 

The magistrates had failed to give reasons and were bound to do so in the event of an appeal.

Proceedings in the magistrates' courts which were subject to appeal to the Family Division were governed by the Family Proceedings Courts (Children Act 1989) Rules 1991 or by the Family Proceedings Courts (Matrimonial Proceedings etc ) Rules 1991.  Both those sets of rules made an obligation on magistrates to record and state findings of fact and written reasons for decisions before and when making an order.

 

However, neither of those sets of rules applied to an order made under the Maintenance Orders Act 1958, and proceedings under the 1958 Act were governed by the Magistrates' Courts Rules 1981 where there was no requirement to record or to state reasons.  Proceedings for variation of orders for periodical payments were not automatically family proceedings within the meaning of s.65(1) Magistrates' Courts Act 1980.  No application had been made under s.65(2)(d) of the 1980 Act that the husband's application for a variation should be treated as family proceedings.  Therefore, the application for variation was heard in general court and not in the family proceedings court.  In the instant case the magistrates had not been required to record their reasons prior to refusing the husband's application nor to state them when doing so.  However, in following Sullivan v Sullivan (1947) P 50 justices were bound to give reasons in the event of an appeal.  Those reasons were now not available for the appeal court and the case was remitted to be reheard.

 

RE CARTER (A MINOR) sub nom RE C (CARE OR SUPERVISION ORDER) (1999) 2 FLR 621

 

Fam Div Sir Stephen Brown (President)

 

This was a case where the magistrates set out their reasons clearly.  The Parents appealed a decision of Peterborough Family Proceedings Court to make a care order in respect of a child ('J').  Magistrates had acted within their range of discretion when ordering a care order in respect of the child even though the local authority had sought a supervision order.  One of the main reasons for the appeal being dismissed was that the magistrates had set out in their reasons a very comprehensive assessment of the evidence and found facts accordingly.  The magistrates had before them the evidence of a very experienced guardian, and they were entitled to take into account his views and accord considerable weight to them.  The reasons given by the magistrates were clear and comprehensive, and the inferences drawn were plainly available to them. 

 

 

W v T sub nom IN RE W (MINOR) (CONTACT APPLICATION: PROCEDURE) (2000) 1 FLR 263

 

Fam Div Wilson J  

 

Wilson J stated that there was a wealth of authority to the effect that the granting of leave to apply for contact under the Children Act 1989 was a substantial judicial decision. Accordingly the magistrates had fallen into error in despatching the application for leave without arranging a hearing to which both parties were invited to attend.  There was no doubt that the magistrates should have recorded their reasons for deciding to proceed in the absence of notice to the mother, and for deciding to grant leave.  However, no order granting leave had been drawn up nor had the magistrates furnished any reasons in support of their decision.

As the magistrates had not provided reasons for their decision, the judge was unable to discern whether they had discharged their duty under s.10(9) of the Act and whether the grandmother had a good arguable case.  By agreement it was decided that the judge would readdress the question of whether leave should have been granted.

RE B (APPEAL: LACK OF REASONS) [2003] 2 FLR 1035

 

Court of Appeal Thorpe J and Bodey J

 

In this case the judgment did not contain an explanation of why the judge made a finding that the child would be likely to suffer significant physical harm when in the care of the mother, and there was no record of any evidence or opinion that would justify that finding.  The judge did not deal with the application for a contact order, or with the strong submissions that a care order would be neither necessary nor proportionate in European Convention terms.  On appeal Thorpe J described the essential test of a judgment as: ‘does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?'  The more experienced the judge the more likely it was that he might display brevity in giving judgment.  It was not incumbent upon the judge to adopt some formula for judgment, or simply to parrot statutory provisions. 

 

On receipt of an application for permission to appeal on the ground of lack of reasons, a judge is to consider whether the judgment is defective for lack of reasons, and, if necessary, remedy the defect by the provision of additional reasons.

 

OXFORDSHIRE COUNTY COUNCIL V S [2004] 1 FLR 426

 

Fam Div Munby J

 

It was not clear from the justices' reasons that they had correctly applied the threshold criteria test for the making of an interim care order. Munby J held that there is no legal obligation on justices to read out verbatim the whole of the document in which their reasons and findings of fact have been recorded. Indeed, they are not required to read out verbatim even those parts of the written judgement recording their reasons and findings of fact, although it would probably always be prudent for them to do so. So long as they comply with their obligations under r 21(6) to state orally their findings of fact and the reasons for the court's decision, it is no objection that they have paraphrased or summarised the contents of the written document, nor will the decision be invalidated by a mere slip of the tongue. The oral statement to be made under s 21(6) must state: (a) the justices' findings of fact, the reasons for the court's decision and the terms of the court's decision and order; and (b) do so in terms which, even if not verbatim, involve no material or significant departure or deviation from the written document. Any such departure or deviation of substance rather than mere form is almost bound to lead to the decision being quashed. However, any litigant seeking to demonstrate that any such material or significant departure or deviation from the written reasons had taken place bears a heavy evidential burden and, absent admission or clear evidence, the court will be slow to find that justices have erred in this way.

 

RE C (A CHILD) [2006] EWCA Civ 235

 

CA (Civ Div) Thorpe LJ, Wall LJ

 

On the father's applications for increased contact and a shared residence order the judge had failed to give any reasons for departing from the recommendations of the CAFCASS officer and had erred in law in refusing the applications.

The appellant father (F) appealed against the refusal of his applications for a shared residence order and for increased contact with his child (L).  The judge, who analysed recent authorities of the Court of Appeal and considered a report from a CAFCASS officer, refused the applications and held that the CAFCASS report did not make any firm recommendation for shared residency or increased contact.  F contended that the judge had misdirected himself in law and erred in refusing the shared residence order and an increase in contact.

The CAFCASS report was supplemented by the officer's oral evidence where it was clearly stated that L would benefit if contact was elevated.  One of the main reasons for the appeal being allowed was that the judge had a clear obligation to explain carefully and fully his rejection of those views if he chose to exercise his judicial discretion and part from them.  The judge did not refer to the oral evidence at all and, as such, his rejection of the evidence lay unexplained and his decision refusing increased contact could not stand.