Thursday 19 July 2012

The referee's decision is final - even for the referee

 Judges aren't allowed to dither.  Judges have to decide.  And once they've decided, that's it.  They can't change their minds a few weeks later and turn back the clock.  If they've got it wrong, the most they can do is give permission to one party or the other to appeal it.

L-B children

This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case.  On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries.  In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved.  Not only was the decision clear, it was obviously very important indeed.

The local authority prepared a care plan for the two children of the family.  They were both to stay for the time being with their mother's parents.  There would be a final hearing in February to decide what the best long term arrangement would be.  Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.

In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case.  She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured.  So there was no longer a finding that the father had been responsible at all.  Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it.  The appeal which was filed was effectively a request for further explanation of the change of mind from the judge.  When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.

The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that.  It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it.  The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal.  But there has to be finality at some point.  Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.

In fact, this case now, sadly, will go to further appeal by the look of it.  The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either.  The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of.  A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.

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  1. This has also been analysed by suessuspicious minds in a very good blog looking at the procedural issue from the practitioner's perspective. You can read it here:

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