Guidance on the proper approach of the appellate court on a review of a first court’s decision when a first appeal was pursued in family proceedings and where the first court’s reasoning was wrong and that reasoning included or should have included a proportionality evaluation.

The Court of Appeal gave such guidance when allowing the father’s appeal against the decision of Judge Clarke, sitting in the Birmingham County Court, dismissing the parents’ appeal against the care and placement orders made by the family proceedings court and remitting the proceedings to be determined afresh in the county court. It was common ground that the family proceedings court’s reasons did not involve a sufficient analysis of the evidence that it had heard and in particular, did not set out with any sufficient particularity a welfare analysis which identified the benefits and detriments of the realistic welfare options. There was an insufficient proportionality evaluation. The father appealed on the ground that in the event that the judge did have the power to undertake a welfare balancing exercise and to apply the proportionality test, she had been wrong to pursue such a course on the facts of the case.

RYDER LJ said that the judge held that the magistrates’ reasoning was insufficient and thereby wrong and the question arose whether the judge was permitted to “fill the gaps”, provide her own reasoning or substitute her reasons for those of the first court. On an appellate review the judge’s first task was to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere. In public law family proceedings there was always a value judgment to be performed which was the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represented and accordingly there was a review to be undertaken about whether that judgment was right or wrong. Armed with the error identified, the judge then had a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a rehearing. The judge had the power to fill gaps in the reasoning of the first court and give additional reasons in the same way that was permitted to an appeal court when a respondent’s notice had been filed. In the exercise of its discretion the court had to keep firmly in mind the procedural protections provided by the Rules and Practice Directions of both the appeal court and the first court so that the process which followed was procedurally regular, that is fair. If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gave permission to be adduced and the reasons of the first court, the appeal court decided that the error identified was sufficiently discrete that it could be corrected or the decision re-made without procedural irregularity, then the appeal court might be able to rectify the error by a procedurally fair process leading to the same determination as the first court. In such a circumstance, the order remained the same, the reasoning leading to the order had been added to or re-formulated but based on the evidence that existed and the appeal would be properly dismissed. If the appeal court was faced with a lack of reasoning it was unlikely that the process described would be appropriate, although it had to be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning might be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided was a key question upon which the decision ultimately rested and that question had not been answered and in particular if evidence was missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court was in issue, then it was likely that the proceedings would need to be remitted to be re-heard. If that rehearing could be before the judge who had undertaken the appeal hearing, that judge needed to acknowledge that a full rehearing was a separate process from the appeal and that the power to embark on the same was contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the rehearing. In any event, the rehearing might require further case management. The two-part consideration to be given by a family appeal court was heavily fact dependent. What might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful to do other than to highlight the considerations that ought to be borne in mind. Applying those conclusions to the present case, when the appeal court could not comfortably fill the gaps in the analysis and evaluation of the first court and where as a matter of substantive or procedural law the decision had been demonstrated to be wrong, the appeal court should allow the appeal and remit the applications to be re-heard. The evidential shortcomings could not be corrected by what were no doubt the good intentions of the appeal judge.

BLACK LJ and SIR TERENCE ETHERTON C concurred.