W (A Child), Re

Factual and Procedural Background

The judgment under appeal arose from ongoing care proceedings concerning multiple children, focusing on fact-finding related to allegations of sexual abuse made by an older sibling ("C") against several family members. The judge, sitting as a Deputy High Court judge, conducted an extensive hearing and found none of the sexual abuse allegations proved. The judge also made adverse findings and criticism against various professionals involved in the case, including a local authority, a named social worker ("SW"), and a named police officer ("PO"), proposing to name the latter two in the judgment. No party appealed the judge’s conclusion on the abuse allegations themselves. The statutory threshold for care proceedings had been met on unrelated grounds, and the children are now returned to their parents with no live public law orders. The appeal concerns procedural fairness relating to the judge’s adverse findings against SW, PO, and the local authority, which were announced for the first time in a brief oral "bullet point" judgment after the hearing, without prior notice or opportunity for those affected to respond.

Legal Issues Presented

1. Whether a witness in Family proceedings, subject to adverse judicial findings and criticism, who asserts the lower court process was so unfair as to breach Article 8 of the European Convention on Human Rights (ECHR) (right to private and family life), can challenge the judge’s findings on appeal.
2. If such a challenge is permissible, on what legal basis can it be made?
3. If a breach of Article 8 is found, what is the appropriate remedy?

Arguments of the Parties

Appellants' Arguments

• The appellants, SW and PO, argued that although they were witnesses and not formal parties at the hearing, subsequent procedural developments and their involvement in submissions on the draft judgment conferred party or at least "intervenor" status, entitling them to appeal under the Matrimonial and Family Proceedings Act 1984, s 31K.
• They contended the judge’s adverse findings against them engaged their Article 8 rights to private life, including professional reputation and employment prospects, and that the process was procedurally unfair because these findings were announced without prior notice or opportunity to respond during the hearing.
• The local authority, while not having Article 8 rights, argued that the lack of fair process amounted to a breach of the right to a fair trial under Article 6 of the ECHR.
• The appellants submitted that the statutory appeal provisions should be interpreted compatibly with the Human Rights Act 1998 to allow their appeals despite procedural hurdles.
• They asserted the post-judgment process of inviting submissions on the draft judgment was insufficient to cure the unfairness caused by the initial announcement of adverse findings without notice.
• Regarding jurisdiction, the appellants challenged the strict interpretation of what constitutes an appealable "decision" or "order" as set out in the case of Cie Noga SA v Australia and New Zealand Banking Group, arguing that where findings have serious legal consequences and breach human rights, an appeal should be permitted.
• They emphasized the procedural fairness requirements under Article 8, including disclosure, opportunity to make representations, and being informed of the gist of adverse findings before they are made.

Respondent's Arguments

• The respondent family member opposing the appeals relied heavily on the authority of Cie Noga, submitting that the Court of Appeal lacked jurisdiction to entertain appeals against subsidiary findings of fact that were not part of a formal order or decision.
• It was argued that Article 8 rights do not apply to individuals giving evidence in a public role such as police officers or social workers, and that the judge’s post-judgment process remedied any potential breach of procedural fairness.
• The respondent cautioned against conflating issues of fairness and professional reputation with the separate question of appellate jurisdiction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the procedural and substantive legal issues raised. It first examined whether SW and PO, initially witnesses, could be regarded as "parties" or "intervenors" for the purposes of appeal, concluding that their participation in submissions on the draft judgment conferred sufficient party status to permit appeal under the Matrimonial and Family Proceedings Act 1984, s 31K. The court also relied on the Civil Procedure Rules and the decision in MA Holdings Ltd to hold that even if formal party status were lacking, the appellants could still seek permission to appeal due to their real interest in the outcome.

On the question of whether the adverse findings constituted an appealable decision, the court considered the leading authority of Cie Noga and related cases, which restrict appeals to formal judgments, orders, or determinations. However, the court recognized that this case involved breaches of fundamental rights under Articles 6 and 8 of the ECHR, which engage the Human Rights Act 1998. The court found that the judge’s adverse findings, although not part of a formal order, were a "judicial act" capable of being unlawful under the HRA and thus appealable.

The court then addressed the Article 8 rights of SW and PO, concluding that professional reputation and employment prospects are protected aspects of private life. It held that the procedural fairness requirements under Article 8 include prior notice of adverse findings and an opportunity to respond. The court found that the judge’s process was manifestly unfair because the adverse findings were announced "out of the blue" in the bullet-point judgment without prior notice or opportunity for the appellants to respond during the hearing or in cross-examination.

The court further held that the post-judgment process of inviting submissions was inadequate to cure the unfairness because the judge had already reached his concluded decision at the time of the bullet-point judgment. The court stressed that fairness requires that if adverse findings outside the case as presented are contemplated, the judge must alert the parties and witnesses and establish a fair process before judgment.

Regarding the local authority, the court found that although it lacks Article 8 rights, it is entitled to fair trial rights under Article 6, which were similarly breached by the unfair process.

Finally, the court held that the appellants are entitled to an effective remedy, including setting aside the adverse findings and removing them from the judgment, so that those findings have no validity and are treated as if never made.

Holding and Implications

DISPOSED OF: The Court of Appeal allowed the appeals of the local authority, the named social worker (SW), and the named police officer (PO). It held that the adverse findings made against SW, PO, and the local authority in the lower court judgment were the product of a fundamentally unfair process that breached their rights under Articles 6 and/or 8 of the European Convention on Human Rights, as incorporated by the Human Rights Act 1998.

The court declared that these appellants had party status sufficient to bring an appeal and that the Court of Appeal had jurisdiction to hear these appeals despite the absence of a formal order or decision encapsulating the adverse findings. It further held that the post-judgment process of inviting submissions did not cure the unfairness caused by the initial announcement of adverse findings without notice.

The judgment parts containing the adverse findings against SW, PO, and the local authority were ordered to be set aside and treated as if never made, effectively removing them from the final judgment.

No new general precedent was established beyond the specific, highly unusual facts of this case. The decision underscores the necessity for judges to observe procedural fairness, especially when making serious adverse findings against professionals not previously forewarned or given an opportunity to respond. The ruling affirms the applicability of Article 8 private life rights to professional witnesses and clarifies the interaction between human rights and appellate jurisdiction in family proceedings.