Family lawyers stop inappropriate use of ‘request for clarification’ procedure

In YM (Care Proceedings) (Clarification of Reasons), judges have dismissed an appeal brought by a local authority against findings made in care proceedings concerning a boy, named in the proceedings as Y.

In the lead judgment, Lord Justice Baker, said the court was ‘confronted again with a case in which problems have arisen as a result of requests by the parties for clarification’ of the judge’s reasoning after a ‘lengthy’ fact-finding hearing. He said:

“It has become increasingly common for counsel at the conclusion of a fact-finding hearing in care proceedings to submit requests for clarification of the judge’s reasons. In some cases, the requests are entirely appropriate and not infrequently the responses obviate the need for an appeal.

In a series of recent cases, however, this court has expressed concern about excessive and unnecessary requests for clarification.”

He further commented that the delivery of a judgment “is not a transactional process”. It is in fact a “definitive recording of the judge’s decisions and the reasons for reaching them’ and is ‘not open to negotiation”.

The entirety of the clarification exercise was found to be “wholly unreasonable”, with “no fewer than seven requests for clarification between 31 July and 7 November”.

With the court subsequently finding that there were no compelling reasons given for the Court of Appeal to interfere in the trial judge’s assessment. It added: “It is a coherent conclusion which is plainly sufficient for the purposes of future assessments.”

Dismissing the appeal, with which Lord Justice Green and Lord Justice Males agreed, the judge added:

“The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope that hereafter counsel will confine requests to matters which are material to the proceedings and that judges will deal robustly with requests that exceed what is permissible.”

In further observations, Lord Justice Males said:

‘This court has warned repeatedly against the inappropriate use of the “request for clarification” procedure. It was suggested by counsel that the message may not have got through to family law practitioners as yet, but if that is so, it is high time that it did.

“A “request for clarification” should not be used as a means of attempting to water down findings which have been made in the judgment, still less to negotiate with the judge about what needs to be said in order to avoid an appeal.”

First published on Today’s Family Lawyer on 16th February 2024