MB v Staffordshire County Council, KM, B (A Child)  EWCA Civ 565 (Court of Appeal (The Chancellor of the High Court, Black and Ryder LJJ)
In this case the Court of Appeal restated the circumstances in which an appeal judge in public law family proceedings could re-make a first instance decision, and the circumstances in which such an exercise was inappropriate.
The local authority made applications for care and placement orders in respect of B. The Family Proceedings Court heard the case and made the care and placement orders. The parents appealed and the case came before Her Honour Judge Clarke who held that the magistrates’ decision was flawed but that she could re- make the decision herself. She then held that despite errors the magistrates’ decision was correct and dismissed the appeal.
Lord Justice Ryder set out some general principles in relation to appeals in such cases:
- On an appellate review the judge’s first task is to identify the error of fact, value judgment or law sufficient to permit the appellate court to interfere.
- In public law family proceedings there is always a value judgment to be performed which is the comparative welfare analysis and the proportionality evaluation of the interference that the proposed order represents and accordingly there is a review to be undertaken about whether that judgment is right or wrong.
- Once the error is identified the judge has a discretionary decision to make whether to re-make the decision complained of or remit the proceedings for a re-hearing.
- The judge has power to fill the gaps in the reasoning of the first court and give additional reasons in the same way that is permitted to an appeal court when a Respondent’s Notice has been filed.
- In the exercise of its discretion the court must 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 follows is procedurally fair.
- If in its consideration of the evidence that existed before the first court, any additional evidence that the appeal court gives permission to be adduced and the reasons of the first court, the appeal court decides that the error identified is sufficiently discrete that it can be corrected or the decision re-made without procedural irregularity then the appeal court may 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 remains the same, but the reasoning leading to the order has been added to or re-formulated but based on the evidence that exists and the appeal would be properly dismissed.
- If the appeal court is faced with a lack of reasoning it is unlikely that the process above would be appropriate although it should be borne in mind that the appeal court should look for substance not form and that the essence of the reasoning may be plainly obvious or be available from reading the judgment or reasons as a whole. If the question to be decided is a key question upon which the decision ultimately rests and that question has not been answered and in particular in evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is an issue, then it is likely that the proceedings will need to be remitted to be re-heard. If that re-hearing can be before the judge who has undertaken the appeal hearing, that judge needs to acknowledge that a full re-hearing is a separate process from the appeal and that the power to embark on the same is contingent upon the appeal being allowed, the orders of the first court being set aside and a direction being made for the re-hearing.
- The two part consideration to be undertaken by a family appeal court is heavily fact dependent. What might be appropriate in one appeal on one set of facts might be inappropriate in another.
All three Lord Justices held that on the particular facts of this case (including significant evidential shortcomings) the appeal judge should have remitted the case for re-hearing.
Lord Justice Ryder’s principles are a useful framework for assessing whether a decision on appeal should be remitted or re-made by the appeal judge. They apply with equal force in the context of appeals from welfare decisions made in the Court of Protection. The overwhelming message from the Court of Appeal is that every case will be different and will fall to be considered in detail on its own particular facts.