Family court judge's oral judgment a ‘hazardous’ and ‘unwise course’ says Court of Appeal

The Court of Appeal has criticised a family court judge’s ‘unwise course’ in delivering an oral judgment in a fact-finding case in which a written judgment should have been given ‘because of the nature and complexity of the issues’.

In B and G (Fact-Finding), a mother and father appealed against the findings of fact made in care proceedings concerning their two children. The judge, Her Honour Judge Kushner, had delivered an oral judgment including findings that the children had suffered injuries which were inflicted by one or both of the parents. 

Ruling on the appeal, Lord Justice Baker, with whom Lady Justice Andrews and Lord Justice Holgate agreed, found it was ‘clear from reading the judgment that the judge was not reading out a written text but delivering the judgment from notes’. He found 'unsurprisingly’ that the judgment ‘is to a certain extent lacking in structure and written in a somewhat informal and discursive style’.

‘There is nothing inherently wrong with that,’ the judgment added. ‘It is, however, a hazardous course to take in a case, like this, where the evidence is complex. The risk is that something important is omitted.’

Allowing the appeal and finding that the judge’s conculsion that the injuries sustained by the children were inflicted could not stand, the judgment said: ‘This was a case in which the complex medical evidence was far from conclusive and the judge’s analysis of that evidence was flawed.'

The case was remitted to the family presiding judge for the South Eastern circuit.

Lady Justice Andrews agreed with Lord Justice Baker’s judgment adding: ‘Whilst judges are, and should be, free to decide whether to deliver an oral judgment or hand down a written one, there are some cases in which it should be readily apparent that the latter course should be followed unless there are good reasons not to. In my view, because of the nature and complexity of the issues, this case fell within that category, and it was most unwise of the judge to embark on the course which she did.

‘The practice of circulating a draft of a reserved written judgment under embargo gives the parties’ legal representatives the opportunity to draw the judge’s attention to omissions or mistakes, which can then be addressed before the judgment is handed down. This case provides a graphic illustration of what can go wrong if that course is not followed.’