This is a sad and unsatisfactory story.

In November last year, the Court of Appeal allowed an appeal brought by an unnamed social worker and an unnamed police officer against findings of an unnamed judge against them. The unusual feature of the case was that neither witness had been a party to proceedings – they had just been witnesses – and they had not had any advance warning that the judge was going to be critical of them in his judgment. As explained by the Court of Appeal :

The judgment at the centre of the appeal was given within ongoing care proceedings relating to a number of children by a circuit judge, sitting as a Deputy High Court judge. The judgment, which is extensive, relates entirely to fact-finding in relation to allegations of sexual abuse made with respect to a number of family members by “C” an older sibling of the children who were the subject of the proceedings. In addition to the children’s parents and the children themselves, two male family members had been joined as parties for the fact-finding part of the proceedings as C had made specific allegations of sexual abuse against them. After a lengthy hearing and a very full analysis of all of the relevant material the judge found that none of C’s allegations were proved. In coming to his conclusion he was critical of a range of professionals who, in various ways, were involved with C in the extended period during which C’s apparent account of sexual abuse developed….In addition to dismissing the sexual abuse allegations, the judge felt driven to include in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker and an individual police officer, both of whom the judge proposed to name.

Whilst there were a number of technical issues probably more interesting to lawyers than anyone else (in particular whether or not someone who wasn’t party to a case had any right of appeal at all), the Court of Appeal were very clear this was profoundly unfair and could not stand – when brutally distilled, the upshot was that the judge’s procedure in making criticisms without warning was so unfair that it amounted to a breach of their human right to private life under Article 8 of the European Convention on Human Rights, and since a court is a public body with a duty through the Human Rights Act to act in accordance with the human rights of those about whom it is making decisions, the appellate court had to put this unfairness right. It’s a lot more complex than that, but that’s about the size of it. Those with the energy and inclination can read the more detailed version in the judgment here : Re W (A Child) [2016] EWCA Civ 1140 (17 November 2016).

The appellants wanted the relevant bits of the judgment taken out before publication :

The complaint relates to the judge’s finding that SW and PO, 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. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment which, in due course, in its final form, will be made public.

Nobody in the case had asked for these findings and the judge had not hinted he intended to make them. The findings had potential to impact on the social worker’s and police officer’s career and personal life – indeed the judge had asked that the social worker’s employer was immediately informed. However, the Court of Appeal wasn’t dealing with whether the criticisms were justified or not, but with whether the process leading to them being included in the judgment was fair – it wasn’t. And The Court of Appeal said that whilst they hadn’t been parties to the case at the time the evidence was heard they had become parties when they were invited to respond to the draft judgment – which gave the Court of Appeal the power to deal with the appeal (phew). So, whilst we know some things about this case, the question of whether a number of anonymous professionals really were engaged in some pretty grave misconduct remains an open one.

This week we have had a further instalment. Before we look at the new judgment, there is one further highly prescient paragraph in the first judgment, paragraph 100 :

The present case is, unfortunately, to be regarded as extreme in two different respects: firstly the degree by which the process adopted fell below the basic requirements of fairness and, secondly, the scale of the adverse findings that were made. This judgment is, therefore, certainly not a call for the development of ‘defensive judging’; on the contrary judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.

The new judgment is W (Children) [2017] EWFC 61 (17 August 2017), and was delivered by Sir James Munby, the President of the Family Division, and relates to an application by the social worker for permission to disclose certain material from the family proceedings to the Queens Bench Division (another branch of the High Court dealing with non-family matters) so that she can pursue a claim of misfeasance in a public office and a human rights claim (breach of articles 6 (fair trial), 8 (private and family life) and 14 (discrimination)) against the Ministry of Justice and Lord Chancellor (as being responsible for the judge’s actions (The police officer seems to have faded into the background at this point and played no part in this hearing).

Many people will be a bit bamboozled by terms like “misfeasance in a public office“. It’s a very rarely used legal action. Misfeasance in a public office is a type of tort (a legal wrong, but not a crime) and is generally accepted as coming in two types :

The first is where a defendant, in bad faith, abuses his powers (or neglects his duties) as a public officer specifically intending to injure the claimant and the claimant suffers material harm.

The second is where the defendant, in bad faith, acts knowingly beyond his powers (or inconsistently with his duties) and knows that in so acting he is likely to injure the claimant (or a class of people to which the claimant belongs), and the claimant suffers material harm.

(John Murphy, Oxford J Legal Studies (2012) 32 (1): 51 citing Three Rivers DC v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 (HL) 190.)

So, the social worker would have to go further than the judgment of the Court of Appeal that the judge was procedurally unfair. The social worker will have to prove an abuse of power in that the judge knew he was acting illegally or had reckless indifference to that fact AND he also knew or was reckless about the harm that would be caused by his action. Also, the social worker will have to prove actual harm has been directly caused by the judge’s actions, not just a likelihood of harm.

The President explained that somehow (it’s not quite clear how) the name of the judge who had made the original flawed decision had been published, even though the Court of Appeal ordered that it should not be. It is quite unusual for a judge to be anonymised. The original anonymity may have arisen from the highly sensitive nature of the facts, and may have been intended to protect others from identification more than to protect the judge himself. It is also possible that the judge’s name was withheld out of respect for his family, because now we know that the judge in question was Sir Gavyn Arthur, we can see that he sadly suffered a fatal aneurysm in May 2016, shortly before the conclusion of the appeal in June. For unconnected reasons the Court of Appeal’s judgment was not released until November 2016. The rationale for the failed attempt at anonymisation of the judge’s name is speculation on our part however.

The President allowed the application in part, in that the social worker was permitted to disclose certain information as long as it was redacted very carefully to protect the identity of all involved, saying that “subject always to the imposition of any necessary safeguards and conditions, family courts should not stand in the way of, and should, on the contrary, take all appropriate steps to facilitate, the proper administration of justice elsewhere”. The judge’s identity having been inadvertently disclosed, the President appears to have taken the view that trying to put the cat back in the bag was pointless, and he discharged an earlier order preventing the naming of the judge. The safeguards around the identity of everyone involved are rigorous, no doubt because there are vulnerable children involved along with a number of those who were accused of abuse but were ultimately exonerated by the judge. Given the likely level of public and press interest in a case of this sort, those safeguards seem wise to protect all involved, including the criticised professionals, the vindicated alleged perpetrators and the family themselves.

Somewhat unusually, the judge sets out the whole of his long and detailed order at the foot of the judgment. In the order he recites a number of points raised by him but not argued or decided, each of which you can think of as signifying a judicial raised eyebrow : does the social worker even have a cause of action (a claim)? asked the President. Can she even rely on the judgment of the Court of Appeal?

Behind this question is a tricky bit of civil law which we aren’t going to attempt to fully explain here – but there is an old case called Hollington v F W Hewthorn & Co [1943] KB 587 that basically says that in a second civil trial the court has to make its decision on the facts afresh rather than relying on the findings made by the first civil court. What this means is that the President of the Family Division is pointing out that to succeed in the claim in the Queen’s Bench Division the social worker might have to prove the unfairness all over again, rather than treating the Court of Appeal’s conclusions in the family appeal as “in the bag”.

It’s worth noting that misfeasance in a public office is a pretty serious and rarely used cause of action – largely because it is difficult to prove. Very roughly speaking and based on the limited information we have, it sounds as if the criticisms of the social worker and police officer by the judge might have been in the territory of accusations of misfeasance in a public office against them. It is easy to see why the social worker may feel a need to try any route available to get some sort of vindication – whilst the Court of Appeal judgment represented a success on one level that court specifically did not (and could not) comment on whether the Sir Gavyn Arthur had been right or wrong in his conclusions about the social worker’s conduct. On a human level one can understand that the social worker would probably like a court somewhere to say categorically that she was not guilty of any wrongdoing. And if the social worker’s employment has been affected by the findings, a damages claim may represent some hope of repairing the financial damage done.

You might be wondering however, why the social worker needs to bother with complicated things like misfeasance in a public office – why not bring a straightforward Human Rights Act damages claim? We think that is ruled out by Section 7 of the Human Rights Act, which restricts what claims may be made for HRA damages, excluding judicial acts done in good faith (although the judgment does suggest that this is a claim the social worker is intending to bring). 

The recitals also tell us that the President raised whether s9(3) of the HRA is a complete bar to any claim. That subsection says :

In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

On one view that’s it – no claim at all. On another though, a claim for misfeasance in a public office isn’t “proceedings under this Act”, but is a freestanding application. The oddity is that if that claim is successful, the court still has a power to grant HRA damages within the substantive claim. See s8(1) HRA :

In relation to any act …of a public authority which the court finds is …unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

The original judge and any judge in the Queen’s Bench division has a duty to act compatibly with convention rights under s6 HRA.

Anyway, as you can see, it isn’t at all straightforward but, having waggled his eyebrows the President has left it up to the judge in the Queen’s Bench Division to sort out, simply fulfilling his own task of not unnecessarily standing in the way of that other judge getting on with the task.

The President also left open a query about the interpretation of a part of the Family Procedure Rules, which explains when certain documents can be disclosed to those outside the proceedings, specifically rule 12.75(c) which says that a party may communicate information “where necessary to make and pursue a complaint against a person or body concerned in the proceedings”. Presumably the unanswered question is whether an application to the QBD for misfeasance is actually a “complaint” against a person or body “concerned in the proceedings”.

It remains to be seen whether or not this proposed claim gets much further. If the President’s apparent hunch is correct, there may be early applications to strike it out and it may never see the light of day – implied between the lines of the judgment and order the President seems to be “well, you’re entitled to try and it’s not my job to stand in your way – but I’m not sure you’re going to get very far”. If it does go further then the anonymity safeguards will be important for all involved, but may ultimately be challenged by the press (at least in part).

To the extent that the claim proceeds, the judge himself cannot give his own account or defence of his actions – it would have been very unusual for a judge to be a witness but, as a result of his death, we will certainly never hear any explanation he may have offered. All we know is that for some reason he was sufficiently concerned about the practice of professionals to have stuck his neck out in quite an unusual way – he was definitely wrong from a procedural point of view (as confirmed by the Court of Appeal), but we simply do not know whether his view about the social worker’s conduct had any merit in it (although if it did it is perhaps somewhat surprising that none of the parties raised it themselves). Ironically, as things stand now – it is only the judge who has been deprived of some sort right of reply to the allegations against him, and he is the only one without the benefit of anonymity to protect his reputation and memory. There are indeed some strange (a)symmetries in this case.

An obituary of Sir Gavyn Arthur says :

He was perhaps more effective in his legal career, as a campaigner for family justice. A note attached to some flowers delivered to court at Luton after his death read: “HHJ Sir Gavyn Arthur, rest in peace. Thank you for giving me my children back. A dad.”

Our thanks to @mumofboys72 and @markhannamedia for flagging this judgment to us.

Feature pic : The Shadowy Court – (pic courtesy of Mark Hillary on Flickr – thanks)