#UK #PublicLaw #JR: Common Law duty for #JudicialReasons

Judicial Reasons ~ Jacqui Gilliatt, CHILDREN IN LAW, March 2016.

Appealing on the basis of inadequate judicial reasons

Magistrates must give written reasons for their decisions. Other Judges do not have to give reasons in writing but they must still give reasons and these will be tape recorded so that a transcript can be obtained. Courts do not usually announce their decisions and give reasons on a later date but they can give a short summary of their reasons and a more detailed judgment on another occasion. By the rules magistrates are supposed to give their detailed reason no later than 72 hours later

There are cases where, even though it is permitted by the rules, it would not be sensible to take the short summary route and it may be a ground of appeal in itself. However, if the advocates have not objected to this approach it is not likely to be a winning point on appeal. The short summary must itself be readily understood as giving an explanation for the decision.

Justices’ Reasons

Rule 27.2 of The Family Procedure Rules 2010 provides as follows:

Reasons for a decision: proceedings before a lay justice or justices

(1) This rule applies to proceedings in the family court before a lay justice or justices

(2) After a hearing, the court will make its decision as soon as is practicable.

(3) The court must give written reasons for its decision.

(4) Paragraphs (5) and (6) apply where the functions of the court are being performed by –

(a) two or three lay justices; or

(b) by a single lay justice in accordance with these rules and Practice Direction 2A.

(5) The justices’ clerk must, before the court makes an order or refuses an application or request, make notes of –

(a) the names of the lay justice or justices constituting the court by which the decision is made; and

(b) in consultation with the lay justice or justices, the reasons for the court’s decision.

(6) The justices’ clerk must make a written record of the reasons for the court’s decision.

(7) When making an order or refusing an application, the court, or one of the lay justices constituting the court by which the decision is made, will announce its decision and –

(a) the reasons for that decision; or

(b) a short explanation of that decision.

(8) Subject to any other rule or practice direction, the court officer will supply a copy of the order and the reasons for the court’s decision to the persons referred to in paragraph (9) –

(a) by close of business on the day when the court announces its decision; or

(b) where that time is not practicable and the proceedings are on notice, no later than 72 hours from the time when the court announced its decision.

(9) The persons referred to in paragraph (8) are –

(a) the parties (unless the court directs otherwise);

(b) any person who has actual care of a child who is the subject of proceedings, or who had such care immediately prior to the making of the order;

(c) in the case of an emergency protection order and a recovery order, the local authority in whose area the child lives or is found;

(d) in proceedings to which Part 14 applies –

(i) an adoption agency or local authority which has prepared a report on the suitability of the applicant to adopt a child;

(ii) a local authority which has prepared a report on the placement of the child for adoption;

(e) any other person who has requested a copy if the court is satisfied that it is required in connection with an appeal or possible appeal.

(Rule 12.16(5) provides for the applicant to serve a section 8 order and an order in emergency proceedings made without notice within 48 hours after the making of the order. Rule 10.6(1) provides for the applicant to serve the order in proceedings under Part 4 of the 1996 Act. Rule 4.1(3)(a) permits the court to extend or shorten the time limit for compliance with any rule. Rule 6.33 provides for other persons to be supplied with copy documents under paragraph (8).)

The Justices’ Clerks Society & the Magistrates Association published guidance in November 2007 (the link takes you to download of pdf file):

The Justices’ Clerks Society & the Magistrates Association also published revised guidance in respect of uncontested cases in 2014. The revision follows the comments of Pauffley J in Re NL (A Child) (Appeal Interim Care Order: Facts and Reasons) [2014] EWHC 270 (see below for case summary). In that case the Judge deprecated the widespread practice in care proceedings by which parties, usually the local authority, draft the ‘Facts and Reasons’ which are then adopted by the Justices. The President has endorsed the Judge’s comments.

The guidance revises part of the November 2007 Joint Guidance in relation to Justices’ Reasons in the Family Proceedings Court. The section entitled “Good Practice in Relation to Uncontested Cases” as reproduced on page 248 of the Family Proceedings Court Bench Book is no longer sustainable and should be discarded.

This guidance is available HERE (downloads a pdf copy) :

In summary the guidance sets out the main points which should be covered in the written reasons given by magistrates, taking points from case law. The main suggested headings are:

  1. Names of the parties and applications under consideration
  2. Documents read and evidence heard
  3. Background of the case
  4. Facts not in dispute
  5. Disputed facts
  6. Facts found
  7. The extent to which the parties and witnesses were believed or disbelieved and the information on which the court relied in reaching its decision (including an explanation of any disagreement with a Cafcass recommendation)
  8. Authorities cited by the parties
  9. Whether a welfare report has been considered
  10. The judgment or findings of fact in relation to each of the heads under the appropriate checklist for example, section 1(3) of the Children Act 1989
  11. Human rights considerations if raised or relevant (including addressing Article 6 if the court has proceeded in the absence of a party)In relation to the welfare checklist the court must consider the relevant aspects fully and not simply record that the checklist has been considered.It seems to me that the rules now require written reasons to be given in relation to every decision of magistrates (including refusal to transfer the case to a higher level of court and refusing to adjourn the case). However, they only apply to magistrates and not to legal advisers who may make some case management orders.

Higher levels of judiciary

There is no requirement for District, Circuit or High Court Judges to give written reasons or time limit of by when they should give their decision. Even the current President of the Family Division has delayed giving judgment in a case for over 6 months. Whilst this is not covered by any statutory provision, delay in giving judgment may itself play a part in an appeal argument. In any event the quality of the judgment will not improve with delay.

Nor is there currently any published guidance for Judges dealing with family cases. There are some training materials on the Judicial College website but all of them have been written with other tribunals in mind. However, if a Judge follows the guidance which applies to magistrates he or she is likely to cover the right ground.

Recent decisions concerning the approach to adoption cases (probably also applicable to long-term fostering) such as Re B and Re B-S add to the list of necessary components of a judgment

In Re B-S the court had this to say about reasons:

The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge. We have already referred to Ryder LJ’s criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
“the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis.”

She added (para 124): “there is little acknowledgment in the judge’s judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case.”

The judge must grapple with the factors at play in the particular case and, to use Black LJ’s phrase (para 126), give “proper focussed attention to the specifics”.

In relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:

“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”

We need not quote the next paragraph in McFarlane LJ’s judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.

We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.”
McFarlane LJ added this important observation (para 53) which we respectfully endorse:
“a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”

In Re B (A Child) [2014] the court made it plain that judicial reasons which do not hit these targets will almost always lead to a successful appeal.

The court should examine the alternative placement recommendations and make a global, holistic evaluation, in a non-linear way and only make an order resulting in a child being separated from its birth family if it is really necessary to do so. The judgment should also consider whether the birth family have the capacity to care for the child if given appropriate support by the local authority and other agencies.

Q & A

The court has made a decision but not given very good / hardly any reasons but it is probably a perfectly justifiable decision. Should I appeal?

The case of B (A child) [2014] looked at the issue of whether or not a successful appeal should lead to a re-hearing or the appeal court substituting their own decision. The question is – can the appeal court put the mistake right? Or is the mistake too big and we need to start again? The court considered this issue at paras 29 -32 of the judgment:

“I have come to the following conclusion about the question asked of us. 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. Armed with the error identified, the judge then 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 the power to fill 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 regular, that is 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, 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 I have described will be appropriate, although it has to 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 if evidence is missing or the credibility and reliability of witnesses already heard by the first court but not the appeal court is in 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. In any event, the re-hearing may require further case management.

The two part consideration to be undertaken by a family appeal court is heavily fact dependent. I cannot stress enough that what might be appropriate in one appeal on one set of facts might be inappropriate in another. It would be unhelpful of this court to do other than to highlight the considerations that ought to be borne in mind.”

What sort of defects in reasons give rise to good arguments for an appeal?

Following on from this Q & A section are a series of case summaries which show the sorts of criticisms of reasons which will found a successful appeal.

Essentially if no reasons are given, or the reasons do not explain why the court made its decision, or if the reasons do not cover the key components set out above – for example do not explain why the court preferred the evidence of one witness over another, or why it went against a Cafcass officer etc.

A recent example of a case in which the reasoning of a Circuit Judge was found wanting is Re M-B in which it was not clear whether the Judge accepted or rejected medical evidence and did not explain why he rejected it, if he did, and said the Court of Appeal: “He does not adequately explain why he ignores the evidence in this regard or, sufficiently, why he speculates on other possible but non-specific causative events not within the medical experts’ contemplation nor predicated by his findings on the explanations offered in the case.”

Re P (A Child) 2016 provides an example of a Circuit Judge’s reasoning being considered deficient by the Court of Appeal because it lacked proper analysis as required by Re B-S when he concluded a case by making an adoption order. It is a difficult case to understand. The Court of Appeal decided that the appeal should be allowed because of the deficiency in reasons but went on to make the same decision as the Judge as they say themselves – largely for the same reasons he did – and they did not go into particularly great detail when weighing the two realistic options (mother or adoption).

The Judge / magistrates got something very wrong when they were giving judgment. Should I bring this to their attention?

If it is a factual error you should give the court the opportunity to correct it but your duty goes further than that.

M (Children) [2008] EWCA Civ 1261

This was made clear by Wall LJ in a case where a Judge made an ambiguous / contradictory finding as to which of two parents was responsible for injuries to a child (paras 35-40).

“Given the course which I propose I do not wish to say anything about the respondent’s notice or the skeleton argument put in on behalf of the local authority.

English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409
It is high time that the Family Bar woke up to this case, and to the fact that it applies to family cases: – see (inter alia) Re B a child) [2003] EWCA Civ 88, where Thorpe LJ cited from the judgment of Arden LJ in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531. In her judgment in the latter, Arden LJ specifically considered whether the principle identified in a civil appeal should equally apply to quasi-inquisitorial proceedings under the Act. She saw no reason why not, and went on in the following paragraph to offer some general guidance:-

“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”

I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment.

Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate- to obviate the need to come to this court for a remedy.I respectfully agree. What should plainly have happened in the instant case is that, following receipt of the judgment, counsel should have raised with the judge any queries which arose and invited her to deal with them. Had this occurred, I doubt very much if the matter would have reached this court -certainly the query which we are sending back to the judge would not have done so.

This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.

The present case is a particularly blatant example because it is plain that counsel received the judgment in advance of it being perfected, and proposed corrections, some of which at least the judge incorporated. There were, moreover, attendances before the judge on 30 July 2008. Quite why the question of the father as perpetrator was not raised at the time I do not understand. I did not find the explanation proffered convincing. Henceforth, however, I hope that Re B (A child) and Re T (Contact: Alienation: Permission to Appeal) will be followed. Advocates who fail to do so are likely to find themselves in some difficulty.”

See also RE B (APPEAL: LACK OF REASONS) [2003] 2 FLR 1035 below.

Can the Judge change their mind after they have given judgment?

The short answer is yes and it was discussed in the two cases below.

In the Matter of L and B (Children) [2013] UKSC 8

Whilst as Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation [repeated changes of attitude or opinion] is not to be encouraged, it has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected. In the absence of express power to vary or discharge his own orders, any general power for a judge to review his order once perfected was abolished by the Judicature Acts 1873 and 1875 but the power to reconsider the matter before an order was perfected survived. Thus until the court order is sealed, a judge does have the power to change his or her mind.

The overriding objective in the exercise of this power must be to deal with the case justly. Contrary to the practice previously adopted, it is not reserved for exceptional circumstances and would in every case depend on its particular facts. It would be relevant whether any party has acted upon the decision to his detriment especially in a case where it was expected that they may do so before the order is formally drawn up.

In this case, the parties had not irretrievably changed their position as a result of the court’s judgment. The child’s placement had yet to be decided and she remained where she was for the time being. Finality was important but here a final decision had yet to be taken. No judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. The judge had heard very full submissions on the evidence and it was not necessary to invite further submissions before changing her findings in this particular case.

If, unlike the facts of this case, the order had already been sealed by the time the judge changed her mind, what would be the position? In care proceedings the fact-finding hearing is merely part of the whole process of trying the case. During that process the judge must be able to keep an open mind until the final decision has been made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned and particularly the children if the only way to correct such an error were by an appeal. The Civil Procedure Rules and the Family Procedure Rules make it clear that the court’s wide case management powers include the power to vary or revoke previous case management orders, and the issue was whether it was proper to vary an order, rather than whether that order had been sealed. The power had to be exercised judicially and not capriciously and in accordance with the overriding objective.

However, if the later development was simply a judicial change of mind, the arguments were finely balanced. Children cases may be different from other civil proceedings because the consequences were so momentous for the child and for the whole family. The court had to get it right for the child. On the other hand, the purpose of the fact-finding hearing was to create a platform of established facts which would be undermined, throwing the later hearings into disarray, if a judge could be urged to change his mind and in effect hear an appeal against himself. As the point did not arise in this case, the court declined to express a view.

The Supreme Court reflected that the problem which arose in these proceedings would have been avoided by having a full and reasoned judgment from the judge in the first place, which would have identified the reasons for her initial conclusion that the father had been the perpetrator, and from which the father could have appealed. That would have avoided the situation here, where the findings against the father were restored without his having an opportunity for a proper appeal.

Re K-L (Children) [2015] EWCA Civ 992

In relation to fact findings it is permissible to appeal against the findings made (as opposed to the order).

In this case a judge produced three different versions of her decision. In the first she made findings against the father but in the second two she did not. She did not explain why she had changed her mind, claiming not to have made it up in the first place, which was contradicted by what she said in the first version of her judgment. Her decision was criticized by the court for a number of reasons including that she had cut & paste chunks of the guardian’s skeleton argument into her judgment and it contained a number of factual errors. The appeal was allowed and the case sent back for rehearing.

Case Summaries

RE M (A MINOR) (1981) Fam Law 58

Balcombe & Sheldon LJJ

Balcombe LJ said that the reasons the instant court received could be written in five lines. They were short and to the point but did not give the court help to which the court was entitled. The court was entitled to expect better reasons than those given by the justices.

Sheldon LJ said that justices should remember that a party aggrieved by their decision may wish to challenge the order in the Family Division or by other appellate procedure. When it was necessary to give reasons it was essential in the interests of all parties, especially in dealing with the upbringing of children, that justices’ reasons be sufficient to enable the court to examine their decisions. The principal advantage for the court at first instance was the opportunity of seeing the parties at first hand and examining oral evidence. The appellate court did not have this advantage and needed to know the justices’ conclusions on the evidence. In his opinion justices must always give their assessment of the characters of all parties concerned as to why they accepted or rejected the evidence.

RE H (A MINOR) (CARE PROCEEDINGS) [1992] 2 FCR 330

Fam D Thorpe J

The magistrates were required by 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991 to state their findings of fact and the reasons for the court’s decision. As a matter of practice, magistrates should take care to state their assessment of the credibility and reliability at least of the most important witnesses. Also there was good sense in an express application of the checklist in s 1(3) of the Act to the particular facts of the individual case.

In this case the justices’ reasons ran to 11 pages and were divided into 8 separate sections and amply demonstrated the conscientious care which had been taken in their determination.. ‘Justices are not to be expected to produce polished judgments such as might be expected of a reserved judgment from a High Court Judge.’

HILLINGDON LONDON BOROUGH COUNCIL V H [1992] 2 FLR 372

Fam D Johnson J

“In this case the findings of the justices and their reasons, so far as concerns the making of an order for costs, were announced by them in the following terms:

‘We adopt the guardian ad litem’s view of the local authority’s actions and order the father’s full costs to be paid by the local authority ..’

As I have said I have read the report of the guardian ad litem and such information as I have which would indicate her view of the local authority’s actions now on several occasions and I have to say that I do not understand what findings the justices believed they were making or what reasons they were giving for their decision in that brief statement which I have just quoted in full.

In accordance with the former practice but, as I hold, contrary to what should now be the practice under the Children Act 1989, the justices have provided further reasons extending to three pages. … I hold that on an appeal to the High Court under the Children Act 1989 the only findings of fact and the only reasons that may be relied on to support the decisions of the justices under appeal, are those announced by the justices in accordance with the rule to which I have referred. Undoubtedly in applying this rule the High Court will seek to avoid undue rigidity and technicality. Nonetheless, it seems to me that the rules require the justices to record the facts which they judged to be significant in the making of their decision and also the salient considerations which have led them to their conclusion.”

OXFORDSHIRE COUNTY COUNCIL V R [1992] 1 FLR 648

Fam Div Douglas Brown J

“Magistrates must learn new skills and learn them quickly although no one expects then to give judgments in the way that a judge does. A good starting-point is the statutory framework within which they are working… in part IV cases regard has to be had to the s 1(3) circumstances. Using the statutory criteria as a checklist the findings of fact and reasons can be built around them without undue length. A useful approach … pro forma for both findings of fact and statements of reasons. The various headings by way of example are these: 1. Facts not in dispute; 2. Disputed facts; 3. Findings of the court that is facts which the court found proved; 4. the extent to which witnesses including the applicant or respondent were believed or disbelieved if that has not already been stated under 3, and the information upon which the court relied in reaching its decision. Then there is a section which deals with the citation of authority by the parties, whether a welfare report has been considered and the prof forma is dealing with cases where, specifically, a welfare check-list has to be considered and the suggestion is made that each of the considerations (a) to (g) under s 1(3) are set out individually, and the judgment or the findings of fact set out under each subparagraph.”

RE B (PROCEDURE: FAMILY PROCEEDINGS COURT) [1993] Fam Law 209

Balcombe J

“I would, however, make a few comments upon the justices’ reasons bearing in mind that the rule to which I have referred now requires justices to give oral reasons at the time when they make an order or refuse an application. Let me say at once that it would be quite unrealistic to expect justices to be able to give an extempore judgment in the same way that a professional judge can do. Nevertheless it may be a help to them to have it pointed out that it would be helpful both to the parties and indeed to any appellate court that may have to consider their reasons thereafter, if they first set out the relevant facts, either in chronological order or by whatever headings they think convenient; but in any case making it clear which facts were not in dispute and giving their findings on any matters which may be in dispute. ..Then when it comes to giving the reasons for their decision, it would, I think, also be helpful if they set out the factors that they have brought into the balance, even if some are clearly obvious.”

W V HERTFORDSHIRE COUNTY COUNCIL [1993] 1 FLR 118

Fam Div Booth J

“Reasons and findings of fact must be recorded and stated when the court makes any order or refuses any application. There is no exception to this mandatory requirement. In this respect and interim order is no different from an order which is intended to be long term. The decision-making process is always the same. In each and every case the parties should be able to be confident that the court has followed the required steps and has reached its decisions in the proper manner and the parties are entitled to know the justices’ reasons and their findings.”

ESSEX COUNTY COUNCIL V B [1993] 1 FLR 866

Fam Div Douglas Brown J

The object of r 21 of the Family Proceedings Courts (Children Act 1989) Rules 1991 was to ensure that the magistrates took time at the end of the hearing before they announced their decision, to address the issues and formulate their reasons, which were recorded in writing and given to the parties. Unstructured and impromptu reasons, given by the chairman and taken down by the clerk, were insufficient, as were two sections referred to as ‘facts in dispute’ and ’facts not in dispute’ which were not prepared at the time of the hearing. There needs to be a proper analysis of the welfare checklist brought to bear on the particular relevant facts of the case

RE D (CONTACT: INTERIM ORDER) [1995] 1 FLR 495

Fam Div Wall J

“This case demonstrates, yet again, the need for this court to remind justices that they must set out fully and clearly their reasons for reaching all their decisions. Those reasons must be in clear and unambiguous language, so that the parties and if need be this court can understand what they have done and why they have done it….

In my judgment, it is unacceptable for any court to make a bland statement that it has ‘considered all aspects of the welfare checklist’ without further particularisation unless, elsewhere in the course of its judgment or reasons, it has, in considering the evidence or in making findings, dealt in detail with the relevant aspects of the checklist, thereby demonstrating that it has applied it mind to the relevant factors …Justices are obliged to apply the checklist in every case to which it applies and in my judgment they are well advised to go through it in their reasons in the format for justices’ reasons referred to in Oxfordshire.. so that the parties and this court can see clearly those aspects to which they have given weight and those which they thought either did not apply or to which they have given lesser weight. In a case such as the present, where the justices’ reasons are otherwise inadequate a bare assertion that the checklist has been considered is unacceptable …As this court has stated on many occasions, where the reasons are inadequate the decision is flawed and the inevitable result is that the appeal must be allowed. The door is thus open to the exercise of my discretion.”

RE M (SECTION 94 APPEALS) [1995] 1 FLR 546

CA Butler-Sloss and Kennedy LJJ

“The principles in G v G should in my view broadly apply to s 94 appeals. One must not overlook, however, that the appellate court has to be satisfied that the trial court took into account all the relevant matters and did not take into account any irrelevant matters in the balancing exercise which it carried out. Consequently where magistrates demonstrate in their reasons that they have correctly approached the exercise of discretion and have considered all the relevant facts and have correctly directed themselves as to the relevant criteria under the Act, an appellate court is not free to substitute its own view of the case unless the court below has exceeded that generous ambit within which reasonable disagreement is possible and has come to a plainly wrong decision.

If, however, the magistrates’ reasons omit important factors, not peripheral matters of little importance, or fail to give reasons for disagreeing with a recommendation made by the court welfare officer as in this case, or their reasons are unclear on aspects which are crucial to the decision, an appellate court would be justified in looking with particular care to see if they have correctly carried out the balancing exercise. An appellate court might be less ready to assume that magistrates have taken relevant factors into account if they have not referred to them than it might in the case of an experienced judge. But reasons are not intended to be a judgment and an appellate court should be slow to interfere with magistrates’ decisions as it would be to interfere with any other tribunal charged with the duty to make decisions in the exercise of its discretion.”

RE WB (RESIDENCE ORDERS) [1995] 2 FLR 1023

FAm Div Thorpe J

Justices sought to provide the judge with further reasons to justify their determination. The court held that it was ‘quite inappropriate … to communicate with the appeal court, particularly in the submission of considerations which they believe justify their determination.’

T v W (CONTACT: REASONS FOR REFUSING LEAVE) [1996] 2 FLR 473

Fam Div Connell J

The applicant was not the natural father of the child but had lived with the mother for a significant period during the child’s life. There was some contact between the child and the applicant after the couple’s separation, but in 1995 all contact ceased at the instigation of the mother. The applicant applied for leave to apply for contact with the child. The magistrates having heard evidence, tested in cross-examination, and submissions, refused the applicant’s application for leave but failed to give their reasons for such a refusal. The applicant appealed.

The appeal was allowed. The application before the court for leave was an important one and the applicant was entitled to know why his application had been refused. The failure to give reasons was a very serious deficiency and this case did not fall within the category of quite exceptional cases where reasons need not be given.

LONDON BOROUGH OF CROYDON V R [1997] 2 FLR 675

Fam Div Wall J

The justices failed to give reasons on the matter of parental capacity. It was held to be inescapable under the Family Proceedings Courts (Children Act 1989) Rules 1991, r 21(5) that justices’ reasons had to be given for the decision. The application before the justices for directions was important and one for which they should have given reasons.

“These rules, and r 21 in particular, have been considered by the High Court on numerous occasions, and in terms of reported cases the failure to comply with r 21(5) has been the principal basis upon which appeals from justices sitting in the family proceedings court have been allowed. All the judgments from this court have stressed the need for the parties to know why the application before the court had succeeded or failed and for this court to understand the reasoning behind a decision, so that this court can decide whether or not the exercise of the justices’ discretion has been appropriate, within G v G.”

RE P (CONTACT: DISCRETION) [1998] 2 FLR 696

Fam Div Wilson J

The requirement under the FPC (CA1989) Rules 1991 that a decision to make or refuse an order under the Children Act 1989 could only be announced in court after the findings and reasons in support had been recorded in writing was an onerous one. It was important that the appellate court did not take too pedantic an approach to a document produced in such circumstances. The key issues for the appellate court were whether the legal principles had been correctly identified, whether the material factors, particularly any under s 1(3) had been afforded sufficient weight in the balancing exercise, and whether the decision was plainly wrong.

HACKSHAW v HACKSHAW (1999)

Fam Div Wilson J

The magistrates had failed to give reasons and were bound to do so in the event of an appeal.

Proceedings in the magistrates’ courts which were subject to appeal to the Family Division were governed by the Family Proceedings Courts (Children Act 1989) Rules 1991 or by the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991. Both those sets of rules made an obligation on magistrates to record and state findings of fact and written reasons for decisions before and when making an order.

However, neither of those sets of rules applied to an order made under the Maintenance Orders Act 1958, and proceedings under the 1958 Act were governed by the Magistrates’ Courts Rules 1981 where there was no requirement to record or to state reasons. Proceedings for variation of orders for periodical payments were not automatically family proceedings within the meaning of s.65(1) Magistrates’ Courts Act 1980. No application had been made under s.65(2)(d) of the 1980 Act that the husband’s application for a variation should be treated as family proceedings. Therefore, the application for variation was heard in general court and not in the family proceedings court. In the instant case the magistrates had not been required to record their reasons prior to refusing the husband’s application nor to state them when doing so. However, in following Sullivan v Sullivan (1947) P 50 justices were bound to give reasons in the event of an appeal. Those reasons were now not available for the appeal court and the case was remitted to be reheard.

RE CARTER (A MINOR) sub nom RE C (CARE OR SUPERVISION ORDER) (1999)

Fam Div Sir Stephen Brown (President)

This was a case where the magistrates set out their reasons clearly. The Parents appealed a decision of Peterborough Family Proceedings Court to make a care order in respect of a child (‘J’). Magistrates had acted within their range of discretion when ordering a care order in respect of the child even though the local authority had sought a supervision order. One of the main reasons for the appeal being dismissed was that the magistrates had set out in their reasons a very comprehensive assessment of the evidence and found facts accordingly. The magistrates had before them the evidence of a very experienced guardian, and they were entitled to take into account his views and accord considerable weight to them. The reasons given by the magistrates were clear and comprehensive, and the inferences drawn were plainly available to them.

W v T sub nom IN RE W (MINOR) (CONTACT APPLICATION: PROCEDURE) (2000) 1 FLR 263

Fam Div Wilson J

Wilson J stated that there was a wealth of authority to the effect that the granting of leave to apply for contact under the Children Act 1989 was a substantial judicial decision. Accordingly, the magistrates had fallen into error in despatching the application for leave without arranging a hearing to which both parties were invited to attend. There was no doubt that the magistrates should have recorded their reasons for deciding to proceed in the absence of notice to the mother, and for deciding to grant leave. However, no order granting leave had been drawn up nor had the magistrates furnished any reasons in support of their decision.

As the magistrates had not provided reasons for their decision, the judge was unable to discern whether they had discharged their duty under s.10(9) of the Act and whether the grandmother had a good arguable case. By agreement it was decided that the judge would readdress the question of whether leave should have been granted.

RE B (APPEAL: LACK OF REASONS) [2003] 2 FLR 1035

Court of Appeal Thorpe J and Bodey J

In this case the judgment did not contain an explanation of why the judge made a finding that the child would be likely to suffer significant physical harm when in the care of the mother, and there was no record of any evidence or opinion that would justify that finding. The judge did not deal with the application for a contact order, or with the strong submissions that a care order would be neither necessary nor proportionate in European Convention terms. On appeal Thorpe J described the essential test of a judgment as: ‘does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?’ The more experienced the judge the more likely it was that he might display brevity in giving judgment. It was not incumbent upon the judge to adopt some formula for judgment, or simply to parrot statutory provisions.

The practice set out in English v Emery Reimbold & Strick Ltd; DJ and C Withers (Farms) Ltd v Ambic Equipment Ltd, Verrechia (trading as Freightmaster Commercials) v Commissioner of Police of the Metropolis was held to be of equal application in family cases. On receipt of an application for permission to appeal on the ground of lack of reasons, a judge is to consider whether the judgment is defective for lack of reasons, and, if necessary, remedy the defect by the provision of additional reasons.

OXFORDSHIRE COUNTY COUNCIL V S [2004] 1 FLR 426

High Court Munby J

It was not clear from the justices’ reasons that they had correctly applied the threshold criteria test for the making of an interim care order. Munby J held that there is no legal obligation on justices to read out verbatim the whole of the document in which their reasons and findings of fact have been recorded. Indeed, they are not required to read out verbatim even those parts of the written judgement recording their reasons and findings of fact, although it would probably always be prudent for them to do so. So long as they comply with their obligations under r 21(6) to state orally their findings of fact and the reasons for the court’s decision, it is no objection that they have paraphrased or summarised the contents of the written document, nor will the decision be invalidated by a mere slip of the tongue. The oral statement to be made under s 21(6) must state: (a) the justices’ findings of fact, the reasons for the court’s decision and the terms of the court’s decision and order; and (b) do so in terms which, even if not verbatim, involve no material or significant departure or deviation from the written document. Any such departure or deviation of substance rather than mere form is almost bound to lead to the decision being quashed. However, any litigant seeking to demonstrate that any such material or significant departure or deviation from the written reasons had taken place bears a heavy evidential burden and, absent admission or clear evidence, the court will be slow to find that justices have erred in this way.

RE C (A CHILD) [2006] EWCA Civ 235

CA (Civ Div) Thorpe LJ, Wall LJ

On the father’s applications for increased contact and a shared residence order the judge had failed to give any reasons for departing from the recommendations of the CAFCASS officer and had erred in law in refusing the applications.

The appellant father (F) appealed against the refusal of his applications for a shared residence order and for increased contact with his child (L). The judge, who analysed recent authorities of the Court of Appeal and considered a report from a CAFCASS officer, refused the applications and held that the CAFCASS report did not make any firm recommendation for shared residency or increased contact. F contended that the judge had misdirected himself in law and erred in refusing the shared residence order and an increase in contact.

The CAFCASS report was supplemented by the officer’s oral evidence where it was clearly stated that L would benefit if contact was elevated. One of the main reasons for the appeal being allowed was that the judge had a clear obligation to explain carefully and fully his rejection of those views if he chose to exercise his judicial discretion and part from them. The judge did not refer to the oral evidence at all and, as such, his rejection of the evidence lay unexplained and his decision refusing increased contact could not stand.

RE X (EMERGENCY PROTECTION ORDERS) [2006] EWHC 510 (Fam)

Fam Div McFarlane J

The local authority applied for an EPO in respect of a 9 year old child without notice to the parents amid concerns that this was a fabricated illness case. The EPO was granted by the magistrates There had previously been a number of Child Protection Case Conferences where concern was such that only a low level of intervention was proposed. The child remained in foster care for the following 14 months. At no stage in the proceedings did the local authority acquire medical evidence to support the allegations of induced or fabricated illness and one year later the local authority abandoned its reliance upon this allegation to support care proceedings, proceedings solely on the basis of emotional abuse.

McFarlane J made a number of criticisms of the local authority’s handling of the case and also gave detailed guidance on EPO applications and the need for detailed findings and reasons to be given in such cases.

“53. The only record of the justices’ reasons is to be found in the clerk’s note and read: ‘Having heard from Ms K, Team Manager, Child Protection Register Scheme, that the child would suffer imminent harm unless an EPO is made’.

  1. This statement of the justices’ reasons is wholly inadequate and is in effect no more than a statement that the bench found the case proved. The need for justices to state their reasons and the basis for those reasons is well established in the rules [FPC(CA 1989)R 1991, r 21(5)] and by authority [T v W (Contact: Reasons for Refusing Leave)[1996] 2 FLR 473; Stray v Stray[1999] 2 FLR 610]. A failure to give reasons is a serious deficiency and should only occur in quite exceptional cases. In S v Oxfordshire County Council [1993] 1 FLR 452, Connell J said:

“It would be unjust to this child to allow a decision to stand which so affected his future without at least understanding the main bases upon which the decision was reached.”

That was not an EPO case, but the principles of justice and fairness must equally apply in an emergency case given the draconian effect of the order that is being made. Where the decision is required urgently, if the justices decide to grant an EPO that decision can be announced and the order granted, with the reasons being reduced to writing after that. The emergency nature of the application, whilst requiring prompt determination, does not absolve the court of its duty to give a reasoned explanation for its decision.

  1. There is no clear indication to suggest that the justices expressly considered whether or not to allow the application to proceed without notice to the parents.
  2. The need to give detailed reasons is important not only as a means of explaining the decision to the interested parties. It is important because the very process of giving reasons requires the tribunal to consider its decision in a structured manner, matching the evidential material against the relevant statutory criteria.
  3. Until I looked into the court file and found the justices clerk’s handwritten note during the first day of evidence, no one had asked for, nor yet seen, any account of the without notice hearing. Ms B agreed with me that the system should always provide the parents and other parties with a full note of the evidence and reasons at a without notice hearing.”

RE NL (A CHILD) (APPEAL: INTERIM CARE ORDER: FACTS AND REASONS) [2014] EWHC 270

Fam Div Pauffley J

The mother had a history of drug and alcohol abuse and her seven older children had all been removed from her care. The local authority sought an ICO in respect of her youngest child, born in October 2013. This ICO was granted in November 2013. There were 2 hearings, at the first on 1 November the mother neither contested nor opposed the ICO and at the second on 7 November the mother contested the ICO. The mother then appealed the court’s decision to grant the ICO.

On appeal Mrs Justice Pauffley was critical of a number of steps leading to the decision to remove the child, including the issue of the facts and reasons provided at each of the hearings.

With regards to the 1st November hearing the Judge was critical of the fact that no reference was made to the test for interim removal in Re LA (Care; Chronic Neglect) [2010] 1 FLR 80.

Whilst acknowledging that this decision was not the subject of the appeal, Pauffley J expressed disquiet at the approach taken by the justices on this occasion.

In respect of the hearing on 7th November, Pauffley J made several criticisms, namely the justices’ use of maintaining the status quo as a reason not to return the child to his mother’s care and the fact that they simply adopted draft facts and reasons prepared by the local authority, which she considered to be particularly unacceptable when there was no requirement that these were circulated to all parties prior to being e-mailed to the court. She stated that alarmingly such practice appeared to be “widespread” across the country.

“53…. by the time of the second hearing, NL’s move to a foster home on 2nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances “may have an effect upon him. NL is very young and needs to form an attachment to his primary carers.”

  1. I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy thestatus quo argument as part of the reason for continuing an interim foster placement for a week old infant.

“57. Lastly in relation to the way in which the proceedings were dealt with at the Family Proceedings Court, I should mention the manner in which the Justices’ Findings of Fact and Reasons were compiled.

  1. The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.

Article 6.1 reads as follows – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

  1. Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

  2. Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise.

  3. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.

  4. Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept. 72. The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.”

RE H (CHILDREN) [2015] EWCA Civ 583

McFarlane LJ did not consider that the following three sentences in a judgment of the District Judge making a care order with an adoption plan with respect to the fourth child of a father who was caring well for his older three children was sufficient:

“Indeed, the district judge’s total analysis with respect to the outcome for W is contained entirely within the compass of the following three sentences:

“I feel that the father does have further work to do in relation to his own situation and that coupled with the care of the three older children will occupy his time fully. I feel that the risk to W of returning to the father’s care at this time is too great for the reasons given by the Guardian and [expert], and that therefore the only order to be made in her best interests is as sought by the local authority for a placement order. I also consider that the welfare of the child requires me to dispense with the consent of the parents.””

The case was then appealed to the Circuit Judge. McFarlane LJ allowed the appeal against the Circuit Judge’s decision saying this:

“I consider that HHJ Farquhar fell into error in two respects. He underestimated the underlying merits of the father’s appeal, considering that the new grounds of appeal were merely arguable when, as I have indicated, they were in truth unanswerable. That flawed analysis caused him to attribute no real weight to the underlying merits in his relief from sanction analysis. That this is so is demonstrated by a key sentence within paragraph 27 of the judge’s judgment where he says “It would be different perhaps if it was completely unarguable to oppose it, but that is not the case here.” That sentence is entirely in line with the approach described by Moore-Bick LJ in the paragraph I have quoted from Hysaj above. This is a case where the court can see without much investigation that the proposed grounds of appeal are indeed “very strong” and, as Moore-Bick LJ states, “the merits have a significant part to play when it comes to balancing the various factors that have to be considered”. On that ground alone, I would, therefore allow the appeal.”

 


 

ALSO SEE:

Oakley v South Cambridgeshire District Council: The maturing of the common law duty to give reasons ~ Professor Mark Elliott | Public Law For EveryoneFEBRUARY 22, 2017.

#, #, #

In Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, a Court of Appeal with strong public law credentials — consisting of Elias, Patten and Sales LJJ — addressed the scope of the common law duty to give reasons. In this area, the orthodox position has long been understood to consist in the principle — laid down by Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] AC 531 — that there is no ‘general duty’ to give reasons, coupled with the guidance given by Sedley J in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 (‘IDS’). According to the latter case, the default ‘no reasons’ position will be displaced — and reasons therefore required — if a decision appears to be ‘aberrant’, such that it calls for explanation via the giving reasons, or if it affects interests ‘so highly regarded by the law … that fairness requires reasons’. Oakley provides a useful insight into the extent to which the position staked out by Doody and IDS over two decades ago remains pertinent today.

A planning officer had recommended that planning permission should be refused for a football stadium on Green Belt land. However, the local authority’s planning committee, rejecting that recommendation, approved the development in principle and subsequently granted permission. It gave no reasons for doing so. The question for the Court of Appeal was whether that failure entailed a breach of the common law duty to give reasons — which required it to determine in the first place whether that duty arose. The Court unanimously held that it did, although the reasoning of Elias LJ (with whom Patten LJ agreed) and Sales LJ diverged somewhat.

Sales LJ’s approach was perhaps the more conservative. The essence of his thinking is distilled in the following excerpt from his judgment:

Where the public interest in ensuring that the relevant decision-maker has considered matters properly is especially pressing, as in cases of grant of planning permission as a departure from the development plan or in cases of grant of planning permission as a departure from the usual protective policy in respect of the Green Belt, that is a factor capable of generating an obligation to provide reasons. This is because requiring the giving of reasons is a way of ensuring that the decision-maker has given careful consideration to such a sensitive matter. Similarly, where a person’s private interest is particularly directly affected by a decision, that may also provide a normative basis for imposition of a duty to give reasons, as exemplified in the Doody and Cunningham cases. In the planning context, I think that there is particular force in this point where the decision appears out of line with a natural and reasonable expectation on the part of the public that decisions will comply with the local development plan and with national policy to protect the Green Belt. Although it might be said that decisions to allow development in the Green Belt or contrary to the development plan are not aberrant as such, in that such decisions are not uncommon and cannot be assumed to be irrational, I think that they do give rise to an important onus of justification on the part of the decision-maker which, taken with the parallel public interest considerations in such cases, grounds an obligation under the common law to give reasons in discharge of that onus.

Viewing matters in this way led Sales LJ to the conclusion that

the foundation for the identification of a duty to give reasons for the decision of the Council in this case is the fact that the decision to grant planning permission appeared to contradict the local development plan and appeared to subvert the usual pressing policy concern that the Green Belt be protected (I think either of these factors alone would be sufficient), which engaged a particular onus of justification on the part of the Council which could only adequately be discharged by the giving of a sufficient indication of its reasons for making the decision it did.

This reasoning remains, at least to some extent, anchored in the principles laid down in IDS over two decades ago, but also shows how the application (and perhaps even content) of those principles has evolved in the intervening years. That reasons can be required in planning cases if there is departure from a development plan or a policy such as that pertaining to the Green Belt bears some relation to Sedley J’s category of ‘aberrant’ decisions, but it was unnecessary in Oakley to go as far as showing that the decision was aberrant: indeed, both Elias and Sedley LJJ acknowledge that the decision could not be characterised as aberrant. Rather, for Sales LJ, the opposition of a decision to extant policies and comparable instruments is sufficient to impose an ‘onus of justification’.

Although Sales LJ does not explicitly join these particular dots, there is surely a connection between his view in Oakley and the increasing willingness of courts to insist (now independently of the doctrine of legitimate expectation) that decision-makers live up to their policies, and depart from them only with good reason. The imposition of a duty to give reasons in the event of departure is a natural corollary of the substantive requirement that policy generally be adhered to. Against this background, the language of ‘aberrance’ today seems inapt, in that it implies a higher bar than is appropriate. What we are seeing, therefore, is the emergence of a category of decisions that are ‘suspect’, as distinct from decisions that are prima facie ‘aberrant’, to which a duty to give reasons attaches.

Meanwhile, Sales LJ’s view that reason-giving is required when ‘a person’s private interest is particularly directly affected by a decision’ maps onto Sedley J’s view in IDS that reasons may be needed when sufficiently ‘highly-regarded’ interests are engaged. But whereas Sedley J illustrated this point in IDS by reference to the liberty of the individual — which had been at stake in Doody — it is clear that for Sales LJ the bar is now substantially lower. (As we will see below, the same is true for Elias LJ.) For Sales LJ, then, the scope of the common law duty to give reasons is evidently broader than it was 20 or so years ago, albeit that the basic methodology remains the same. On this approach, ‘no reasons’ remains the default, and reasons will be required if a trigger condition is satisfied. The difference is that the trigger conditions are now substantially easier to satisfy than they once were.

However, the judgment of Elias LJ, with which Patten LJ concurred, offers a glimpse of — even though it does not ultimately deliver — a more radical break with the past that would involve embracing a general duty to give reasons. Elias LJ’s inclination in that direction is rooted in his normative commitment to reason-giving:

There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding – and perhaps thereby more readily accepting – why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.

Elias LJ does not dismiss the arguments against reason-giving, but his treatment of them is relatively cursory:

The disadvantage, accepted by Jay J in this case [at first instance], is that having to provide reasons — particularly where they have to withstand careful scrutiny by lawyers — might involve an undue burden on the decision maker. Exceptionally, there may be some powerful public interests, such as national security, which could justify withholding reasons, but there is no such competing public interest under consideration here.

It has been suggested in the past that the default ‘no reasons’ position is, in practice, turned on its head by the increasing willingness of the courts to conclude that that default is displaced on account of some trigger condition or other being satisfied. This empirical reality, coupled with the strong normative case for reason-giving, raises the question whether it might be time to reverse the starting-point, such that a duty to give reasons will apply unless good cause can be shown for relieving the decision-maker of that duty in the particular circumstances of the case. In a crucial passage, Elias LJ signals that that time may be approaching. Having cited Lord Clyde’s observation in Stefan v General Medical Council (No 1) [1999] 1 WLR 1293 to the effect that in practice reason-giving is becoming the norm (thanks to the scope of the exceptions to the ‘no reasons’ default) Elias LJ goes on to say:

In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so.

Against this background Elias LJ declares himself ‘strongly attracted’ to the argument that ‘reasons should always be given unless the reasoning is intelligible without them’. However, he ultimately steps back from endorsing, saying that ‘courts develop the common law on a case by case basis’, and that ‘there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common law duty’. Instead, in the end, he decides the case in a way that, like Sales LJ’s approach, refers back at least implicitly to the IDS model. He thus concludes that a duty to give reasons arose in the light of ‘[t]he right for affected third parties to be treated fairly arises because of the strong and continuing interest they have in the character of the environment in which they live’ and the need for people to be told why a decision-maker considers it appropriate to do something that flies in the face of established policy.

Where does this leave us? It suggests that even if the common law is ‘moving to the position’ that reasons must be given ‘unless there is a proper justification for not doing so’, it has not yet reached that point. Instead, the common law continues to inch towards that position by dint of the increasing willingness of the courts to conclude that the ‘no reasons’ default is displaced. In 2011, I wrote an article in Public Law under the title: ‘Has the common law duty to give reasons come of age yet?’ In it, I argued that maturity would be reached only when the orthodox position sketched in Doody was abandoned, and a general duty to give reasons — subject, of course, to appropriate exceptions — embraced. Six years on, it appears that the answer to my own question is still ‘no’ — albeit that Elias LJ’s judgment suggests that maturity may now be at least within judicial contemplation.

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