Specialist family law barrister, June Venters KC, representing the Father in medically complex care proceedings, has succeeded in the Court of Appeal (7th March 2023) in having an earlier judgment set aside and for the case to be re-heard by a newly allocated Judge.
The Appeal arguments focused predominantly on three key points:
1. Unfairness – on the basis that findings made by the Judge at the original hearing did not form part of the Local Authority’s case. Those findings were that either the Father had abused the child or the Mother and Father together had abused the child.
Never throughout the proceedings had it been a feature of the case that the Mother and Father together had abused the child. Further, the Local Authority had never pursued such a finding as evidenced by their “opening” “closing submissions” and exchange with the Judge at the conclusion of her judgment.
As a consequence, this meant that the parents had been deprived of the opportunity of:
• Answering questions about it
• Presenting opening and closing submissions
2. Wider Canvass – it was argued that the Judge had placed too much weight on the medical evidence, which was both inconsistent and which had not been acknowledged in the judgment. In doing, she had not considered the “wider canvass” which had clouded her judgment.
3. Lack of Medical Data – both parents argued that the child has been accidentally infected with Gonorrhoea by fomite [infected material such as a bath sponge] but because of the lack of medical data on this they were unable to provide evidence on this point (it is known that, in principle, the disease can be transferred in this way).
Full written judgment is expected in a few weeks, which may also clarify the law on cases involving “pool findings”.
During the hearing June Venters KC raised the point that the Judge had conflated the conventional finding of an individual on the balance of probabilities with a pool finding which is on the basis of a “real possibility”. Lord Justice Jackson in Re B 2019 paras 46 and 47 had made clear how a court can make a pool finding and that a pool finding is not possible for one. Therefore, if it was accepted that the joint finding of the parents acting together was unfair and couldn’t stand, the court couldn’t simply leave the father in the “pool” as there couldn’t just be one person in a pool finding.
View the full report here.