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Fairness to Witnesses: An ISW’s Guide to Re W (A Child)

Fairness to Witnesses: An ISW’s Guide to Re W (A Child)

In the opening paragraph of his judgment in this case, McFarlane LJ sets out the question to be resolved as follows:

‘Can a witness in Family proceedings, who is the subject of adverse judicial findings and criticism, and who asserts that the process in the lower court was so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, challenge the judge’s findings on appeal?

If so, on what basis and, if a breach of Article 8 is found, what is the appropriate remedy?’

The answer turns out to be a good deal longer than the question.

The Facts

One of the difficulties about providing an analysis of this case, which will act as a guide to others in similar circumstances, is that only the briefest facts are given. This is because anything which might identify the individuals would defeat the decision, which was that they should not have been named and should not have been criticised. Nonetheless, the decision turns on its particular facts and any attempt to use it in the future will require a comparable factual matrix.

What then can be gleaned? The case started with a fact-finding hearing before a circuit judge, sitting as a Deputy High Court Judge. The eldest of a group of siblings had made allegations of sexual abuse in relation to various family members. At the end of a lengthy hearing, the judge found that none of the allegations of sexual abuse were proved. Threshold was crossed on other, unrelated, grounds but, by the time the judgment was given in the appeal, all children were back home with no public law orders in force.

At the end of the hearing the judge gave an oral ‘bullet point’ judgment, which was to be followed later by a detailed written judgment. These bullet points included findings that a named social worker (identified only as ‘SW’) and a named police officer (identified only as ‘PO’) had:

‘together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her.’ (McFarlane LJ at para 7)

The first, key point, is that these scathing criticisms had not formed part of the case presented by any of the parties at the hearing. Neither SW nor PO had been cross-examined on this basis when they gave their evidence. The judge did not raise the concerns himself in the course of the hearing. The findings were said to come ‘out of the blue’ and the first anyone knew about them were when the judge delivered his oral, bullet point judgment.

By the date of the judgment, SW was no longer employed by the applicant local authority, having moved to a different authority. Delivering his oral judgment, the judge went on to direct that SW’s new employers ‘must be alerted to my findings as a matter of urgency’. As a result of this, SW was suspended by her employers and had been unable to work for any other authority since that time. The findings also had potential adverse consequences for PO’s future police career.

One month after his oral decision, the judge circulated a first draft of his full judgment. At a directions hearing a few days later, following submissions from the parties and the police, the judge directed that a copy of the judgment should be disclosed to those who were subject to criticism, so that they could prepare submissions and be represented at the next hearing some ten weeks later.

At that hearing, PO and three others were represented. SW attended but was unrepresented. Two months later, an amended draft judgment was circulated. There appears to have then been a further hearing limited to the question of which professional witnesses should be named in the final version of the judgment, that would be made public. The judge decided that SW and PO should both be named.

None of the parties wished to appeal against the judge’s orders in relation to the child or the overall outcome of the proceedings. The local authority had, like SW been heavily criticised by the judge. Permission was given to the council, together with SW and PO to appeal against the findings made against them. The appeal did not involve any assessment of whether the judge’s criticisms were justified or not. The entire focus was on the fairness of the process undertaken by the judge which gave those criticised no opportunity to know or meet the allegations during the course of the trial.

A final matter to note, is the very isolated position SW found herself in. Neither her current employer, nor her employer when she carried out the work in question, seem to have been willing to assist her with the cost of representation in the appeal. She was initially a litigant in person but eventually managed to secure pro bono counsel to (very ably) represent her in the Court of Appeal. This is in contrast to PO, whose representation appears to have been provided through the police.

Legal Hurdles to Overcome

The problem, faced by all three appellants, was that they did not seek to challenge the judge’s findings on the issue of sexual abuse, or the substantive orders which he had made. Additionally, SW and PO had to overcome the fact that they were not parties to the proceedings, only witnesses. How could a witness appeal? These difficulties crystallised in the shape of s31K Matrimonial and Family Proceedings Act 1984 which provides that,

‘…if any party to any proceedings in the Family Court is dissatisfied with the decision of the court, that party may appeal…’ (emphasis added).

Could SW and PO be treated as ‘any party’ and were the comments they complained about part of ‘the decision’?

Lord Justice McFarlane finds his answer to the party issue in three different ways.

The first possible route arises from the steps taken by the judge to allow SW and PO to make representations about the draft judgement. McFarlane LJ took the view that by doing this he had conferred upon them at least the status of ‘intervenor’, which is a limited kind of party and so carries with it an entitlement to appeal.

For the second possible route the Court of Appeal refers to a Town and Country Planning Act case of MA Holdings Ltd v George Wimpey UK Ltd and Tewkesbury BC [2008] EWCA Civ 12. At paragraph 9 of that case, Dyson LJ (as he then was) says,

‘It would be surprising if the effect of the CPR(Civil Procedure Rules 1998)were that a person affected by a decision could not in any circumstances seek permission to appeal unless he was a party to the proceedings below. Such a rule could work a real injustice, particularly in a case where a person who was not a party to the proceedings at first instance, but who has a real interest in their outcome, wishes to appeal, the losing party does not wish to appeal and an appeal would have real prospects of success.’

So, it appears that appeals are not always confined to the parties. They can be brought by someone who is significantly affected by the outcome, but who was not a party to the original case.

Lastly, the judge says that even if the first two solutions were to be wrong, the impact of the trial judge’s findings on the two individuals is so serious that their article 8 rights to respect for their private lives are engaged. The court is therefore obliged by section 3 Human Rights Act 1998 to read s31K in such a way as to make the doorway wide enough for them to pass through.

McFarlane LJ then moves on to look at the second legal hurdle, which all three appellants (including the local authority) had to overcome, namely;

‘whether an appeal is possible where the only target of the appeal relates to subsidiary internal findings of the judge set out in his judgment, and does not relate to any specific order that he made.’

At this stage, it is sufficient to say that there are serious legal obstacles to be overcome here, but they arise primarily from decisions made in commercial cases. The nature of those difficulties is discussed more fully below. The Court of Appeal, rather elegantly, sidesteps these issues by explaining that in the commercial field, rights to a private life are not a relevant issue. By contrast, in the present case, the process adopted by the judge had been so unfair to SW and PO that:

‘…it is clear that the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on whether or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of whether the judgment is given wider publication.’

Lord Justice McFarlane’s reasons for these conclusions are then set out as follows:

a) ‘In principle, the right to respect for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (Wright) v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);

b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and West Midlands Probation Trust);

c) The requirement of a fair process under Art 8 is of like manner to, if not on all-fours with, the entitlement to fairness under the common law (R (Tabbakh) referring to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);

d) At its core, fairness requires the individual who would be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));

e) On the facts of this case protection under Art 8 does extend to the ‘private life’ of both SW and PO for the reasons advanced by their respective counsel and which are summarised at paragraphs 61, 86 and 87;

f) The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.’

In short, where the trial judge went wrong, was that the critical findings against SW, PO and the local authority had not been ‘put’ to either SW or PO when they were giving their evidence, so that they could answer the allegations for themselves and, potentially, rebut what was being suggested. To the question ‘what should the judge have done?’ the Court of Appeal, at paragraph 95, offers the following response:

‘Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following:

a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence;

b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material;

c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.’


The outcome is set out at paragraph 122 in these terms:

‘…those parts of the judge’s judgment which record those matters are to be set aside on the basis that they are to have no further validity and are to be regarded as if they had never been made.’


To begin with an aside, it is notable that McFarlane LJ is careful to point out that the requirement of a fair process is, for all practical purposes, identical to the common law entitlement to fairness. The decision should therefore survive any possible future repeal of the Human Rights Act 1998.

The Court of Appeal are clearly worried about opening a flood of appeals by disgruntled expert witnesses and social workers. It is therefore stressed, repeatedly, that this is a bespoke solution to an almost unique and extreme set of circumstances, where the findings came as a ‘bolt from the blue’ and with no chance to respond to them. Certainly, it would be unusual for criticisms not to be put the witness on behalf of one or more parties or the judge in the course of their cross-examination.

In relation to people who have not been called to give evidence and who may be the subject of adverse comment, there is already an established procedure set out by Munby J (as he then was) in Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam). In that case he was proposing to criticise a local authority and two individuals. Before the judgment was handed down, a draft was sent to all three, inviting them to make either written or oral submissions about any of the findings proposed, or views expressed. Therefore, if someone who, for whatever reason, had not been called to give evidence were named and criticised without first being allowed to meet the accusations, a similar right of appeal may lie.

What is certainly now clear, is that a witness who is effectively ‘convicted in their absence’ and to be ‘named and shamed’ in a published judgment, may be able to appeal. It is notable that the Court of Appeal did not enter onto any enquiry into whether the criticisms of SW and PO were correct, or even justified. The issue began and ended with the fairness of the process by which those findings had been made.

The issue which is unanswered is whether there is redress, where the procedure has been fair, but the witness is still aggrieved by comments which are of, potentially, career-ending seriousness. Can they ask the Court of Appeal to look at the merits of the criticisms made?

On that we can now say that the issue of not being a party, would not stand in their way. However, if the procedure adopted by the judge does not infringe either common law fairness or article 8 ECHR, are they able to challenge what are, effectively, ancillary remarks?

There is a Court of Appeal case of Cie Noga SA v Australia and New Zealand Banking Group [2002] EWCA Civ 1142 which appears to answer this question in the negative. However, the judgment of Lord Justice Waller in that case, suggests that this prohibition may not extend to findings which are ‘pregnant with legal consequences’ in a context outside the issues which the court is actually deciding. In Re W it was argued that for SW and PO, because of the personal and professional impact on the witnesses, the trial judge’s remarks about them were ‘pregnant with legal consequences’. In the event, having found that the procedure adopted by the judge breached the requirements of fairness and/or the witnesses’ rights to have their private lives respected by the state (in the form of the courts), this question did not need to be answered by the Court of Appeal in Re W.

Even if, in a future appeal, the court is persuaded that this route is open, the witness is only ‘through the door of the court’. To succeed they would have to go much further than showing that a different judge might have viewed things differently. To have a successful appeal they would have to show that the trial judge either misdirected himself as to some relevant legal provision, or was ‘plainly wrong’, in the sense that the evidence could not possibly support such findings. An appeal is not a rehearing.

The status of an expert is, potentially, a dangerous incitement to hubris. The ability of the court to censure is a valuable check on this. The decision in Re W is a balancing check to judicial hubris. Careers may be ruined by remarks made about professional witnesses and their competence. Whilst it is absolutely right that those who have risked causing harm by their incompetence should be censured, that must always be tempered by ensuring that the requirement fairness is scrupulously adhered to. If there is any doubt whether the comments are fair and based on full and accurate information, it may be better that they are left unsaid and that employers and professional bodies should investigate fully, calmly and fairly.

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