Challenging judgment

In re M (a child) (Non-accidental injury: Burden of proof) CA TLR 16 December

It is high time that the Family Bar woke up to the fact that English v Emery Reimbold & Strick Ltd ([2002] 1 WLR 2409) also applies to family cases. Counsel has a positive duty to raise with the judge not only any alleged deficiency in the judge’s reasoning, but also any genuine query or ambiguity, that arises on the judgment. Lady Justice Arden in Re T (a child) contact: Alienation: Permission to appeal ([2003] 1 FLR 531) said that when judgment was given, an advocate ought immediately to draw the judge’s attention to any material omission of which he was aware. It would be unsatisfactory to use such an omission as grounds for an appeal if the matter had not been brought to the judge’s attention when there was a ready opportunity do so. Henceforth, it was to be hoped that In re T would be followed, since advocates who failed to do so are likely to find themselves in some difficulty. The court dismissed an appeal by the mother against the decision of the judge, that while the mother was the most likely perpetrator of non-accidental injuries sustained by the child, the father could not be excluded as a perpetrator.