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|Neutral Citation Number:  EWCA Civ 185
|Case No : B4/2011/2323 + (A) B4/2011/2339 (A)
IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM NORWICH COUNTY COURT
HIS HONOUR JUDGE RICHARDS
|Royal Courts of Justice
Strand, London, WC2A 2LL
|13th January 2012
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE RIMER
LORD JUSTICE LEWISON
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Miss Eleanor Platt QC and Miss Fiona Baruah for the Appellant Mother.
Miss Pamela Scriven QC and Miss Marika Bell for the Appellant Father.
Miss Tina Cook QC and Mr Jeremy Dugdale for the Local Authority.
Mr Stephen Cobb QC for the Children's Guardian.
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Lord Justice Thorpe:
- Care proceedings were commenced by the County Council in the Family Proceedings Court in respect of five children: JO, ten; SO, eight; C, seven; E, six; and A, five. They are the children of MA and four of them are the children of the second respondent, J. There is uncertainty as to the paternity of Jo. The judge was anxious to resolve that. However, efforts subsequent to judgment failed to resolve that issue.
- The basis of the proceedings asserted by the local authority were that the children had all suffered physical harm, emotional harm and neglect in the care of their parents and also during a period when the mother was in a relationship with a Mr R. The children were all in foster care at the time of issue. SO the parties to the proceedings were the local authority, the applicant, each of the parents as named respondents. Subsequently Mr R was admitted to the proceedings as an intervener, so too the maternal grandparents, Mr and Mrs St.
- The case was due for disposal or determination in October 2010, but in September the children began to make very serious allegations to their foster parents, not so much allegations as emerging memories, that they had been exposed to completely perverted sexual experiences. Accordingly, the case was transferred to the County Court and was allocated to HHJ Richards, who quite inevitably provided for a preliminary issue trial as to the nature and extent of the abuse that the children had suffered.
- He conducted directions hearings on 14 February and 18 May 2011. In the recitals to the first order is a record that the interveners intended to make submission as to whether the children or any of them should testify. Accordingly the judge ordered at paragraph 10 that that issue should be determined on 16 May 2011.
- At the May hearing, the recitals record that no party other than Mr R sought to argue that the children should testify. Any application for the children to testify would be firmly opposed by the applicant local authority and also by the children's guardian. Accordingly the possibility of the children or any of them appearing at the trial as witnesses was prepared for judicial determination but in the end, in the face of resolute opposition, not pursued.
- The nature of the findings that the local authority were to seek at the final preliminary issue trial were initially defined by a conventional threshold criteria document dated 12 May 2010. That, of course, did not extend beyond the allegations of physical and emotional abuse and neglect. An additional schedule was dated 27 January 2011 and within the additional schedule are all the allegations of a sexual nature. For the preliminary issue trial counsel for the local authority prepared an opening note dated 1 June and with it an appendix, so that by the time the documentation was complete for the preliminary issue trial, the original threshold criteria appear as document F, the additional schedule F1, the opening note JO and the appendix K. The judge in the judgment that he ultimately delivered recorded the position of the parties at the outset of the trial. In relation to the mother he summarised her case by saying that she asserted the children were lying and that alternatively they had been encouraged to say what they were saying by some sort of conspiracy between the foster carers and the social workers. However, she accepted the physical and emotional harm in most respects.
- As to the father his case as recorded by the judge was that he acknowledged that the children had suffered sexual abuse but denied personal responsibility. He accepted the physical and the emotional harm that had been caused by his admittedly violent behaviour.
- As to Mr R he accepted physical and emotional harm caused by him. He was, as it were, agnostic on the question of sexual abuse but denied any responsibility himself whatever.
- The maternal grandfather was unclear in his positions statement but was very plain in saying that if the children had suffered sexual abuse, then he was in no way responsible.
- The maternal grandfather took the eventual position that the children probably had suffered sexual abuse but not at the hands of anyone within what she described as the close family.
- The local authority sought findings against all these adults as specified perpetrators with the exception of the maternal grandmother.
- The local authority's positive case rested upon ABE interviews with the children, which were of a depressingly low quality. Indeed the judge described them as "lamentable".
- However, what became the primary foundation of the local authority's case was the record kept by the two foster mothers between whose homes the children were divided. They had kept a careful running record of the childrens' words and there were no less than 800 pages of this record which was introduced during the course of the hearing belatedly. However, the documents appeared in time for the consideration of the only expert, Professor Baker, and he was able to factor them into his assessments.
- This was a black and white case if ever there was one. The local authority sought findings of sexual misuse of the children by the identified family members. Their case was a strong one, resting on the documents to which I have referred, supported by the expert and fully supported by the guardian, who sought precisely the findings that the local authority sought.
- The family's case in response was obviously a difficult one and they relied upon denial or confession and avoidance and, in the case of the mother, a suggestion of a conspiracy between foster carers and social workers. That was by any standards an implausible assertion and the judge clearly saw the case as a black and white case. It was tried out fully and carefully over no less than 12 days of evidence. There were no written submissions and ultimately a reserved judgment.
- By his reserved judgment the judge criticised the ABE interview in the way that I have already described, and commended the contribution of Professor Baker, which he found nuanced and which had allowed him to a profounder assessment of the children's reported words. He commended the evidence of the foster carers and he reached the clear conclusion that what the children were describing was reality and not fantasy. He was forthright in rejecting the evidence of the respondents and the interveners. In some instances he had no hesitation in saying that they were lying to the court. In other instances he rejected their evidence for more sophisticated reasons. Thus his judgment was fully supportive of the local authority's intervention and he confirmed the findings that he understood them to seek.
- Now what has created this appeal and what led to the grant of permission by McFarlane LJ were extraordinary developments between the close of evidence and submissions and the delivery of the reserved judgment. The developments all fall within a relatively confined time frame.
- The judge was due to depart for a holiday on Friday 29 July and he had indicated his intention to deliver judgment before he left.
- On 20 July the social worker in the case visited JO and in the course of her conversation she was impressed by his anxiety at the forthcoming outcome, his anger at what he understood to have been the case advanced on behalf of his family members and he expressed his wish to meet the judge.
- That was noted by the social worker and on the following day the local authority emailed to the parties not the note but a summary of the content of the note.
- Early on the next morning, 22 July, they emailed a letter to the judge with the attached record of Jo's words and wishes and they copied that to the parties. On that day the guardian and the guardian's solicitor visited JO and in the middle of the day the local authority again communicated with the judge asking him not to read the material that had been attached to their letter. Shortly thereafter the mother's solicitors submitted an application in form C2 seeking an urgent directions hearing in order to deal with the issue of Jo's possible meeting with the judge, which was clearly contentious. All that was achieved on Friday 22nd.
- On Monday 25th, in the middle of the day, the judge issued his response to the local authority communication and to the mother's C2 application for urgent directions. The judge, in what is in effect a mini-judgment, said that he had received applications and he was currently working on the judgment. He said that he refused the mother's application for a directions hearing on the basis that the local authority's application had subsequently been withdrawn and accordingly needed no further consideration. He recorded that the application from the guardian, also on form C2, which must have been issued earlier on the morning of the 25th was granted. The judge said:
"I have considered and bear well in mind the guidelines at  2 FLR 1872 and the observations contained therein. I am prepared to see JO as soon as can be arranged. I would be unlikely not to do so in almost any circumstances. The parties are protected because anything he tells me will be relayed to them. Accordingly I grant the child's solicitor's application and arrangements need to be made as soon as possible, bearing in mind I plan to give judgment this week and I am away on holiday after Friday."
- In the event, "as soon as possible" turned out to be only two hours later for the guardian brought the child to meet the judge at about 14.30 that day. The meeting took place in the well of the court. Present were the child, the guardian, the judge, the usher and the guardian's solicitor who acted as minute taker. The minute recorded the essential exchanges and was approved by the judge. It was circulated to the parties on the 28 July.
- The attendance note and the subsequent paragraphs of judgment dealing with the interview are the foundation of the appeals that have been brought by both mother and father. The attendance shows the judge saying at the outset :
"I have to tell you I have heard all the evidence and I have also started my judgment. I have to say that there can be no secrets and what you tell me will be known by others."
- The note then records Jo's explanation of why he was there and why he felt he had to see the judge. The judge then said :
"They [that is family members] are telling me it is not true and it is made up."
- That of course drew a response from JO after which the judge said :
"It has been said that you did not say much to the police as you had nothing more to say."
- That of course was the summary point made by the family members against J's veracity and it brought a passionate response.
- Then from the judge:
"If I am not sure if that is right or wrong am I right or wrong."
- To which Jo's reply starts with the sentence :
"You are wrong big time."
- And then the record concludes with the judge saying :
"I have already started my judgment so what you have just told me is not my starting point. It is part of the bigger picture. I am going to finish my judgment this week either Thursday or Friday."
- Ms Platt QC and Ms Scriven QC, who appeared respectively for mother and father, founded their appeals on that record in conjunction with the paragraphs of judgment in which HHJ Richards records his meeting with Jo.
- The structure of his judgment is clear. He commences his conclusion, having reviewed the oral evidence, at paragraph 81 and he finishes his explanation of his conclusions and findings at paragraph 94.
- He then continues in paragraphs 95 to 97 inclusive to deal with the extraordinary developments which for him commenced on 22 July. Within that there are a number of phrases and sentences which support the appellant's submission that he had effectively listened to Jo's assertions as to his experiences within the family and had relied upon them in coming to his ultimate conclusions. I read into this judgment paragraphs 95 to 97 in their entirety.
"95. I have dealt with the evidence and my findings before referring to a development in this case that caused a flurry of activity in my absence in the capital on Friday 22nd July, and applications on Monday 25th July. For the sake of brevity, I will simply explain that I acceded to an application made by the child's solicitor for me to see Jo. The other matters which referred to documents were probably subsumed by that decision. I have not looked at the documents as I was asked by the respondents not to do so, and I have set out in a short written judgment explaining why I was acceding to the application of the child's solicitor and that written judgment was circulated. I saw JO not for the purposes of gathering evidence, nor do I attribute to myself any skill with children that is of forensic value. I am not an expert and it is not my place to make investigations.
96. I remind myself, and did so at the time, of the practice direction of the President concerning judges seeing children. I made that clear in my short judgment. I think it is probably well known that I am usually in favour of seeing children if that is what they wish. I was entirely satisfied when I took that decision that no party could be prejudiced because I was going to tell JO that there could be no secrets, and JO could only be allowed to see me in the presence of, at the very least, his solicitor, and in the event his solicitor and guardian. There is a note of that meeting prepared by the solicitor which I have seen and approved, and that note should form an appendix to this judgment. It may also be helpful to append my short written judgment as to why I acceded to the requests.
97. I deal with it at this part of the judgment to make clear the fact that I had not come to my final decisions but had formed a view before I saw Jo. JO told me when he saw me that he was being annoyed because he had learnt from the social worker that it was being alleged by his family that the allegations were untrue. I found JO to be very charming. He was at the same time considered and serious about what he told me, which he did in measured and considered tones for a child who is ten years and nine months old. He is a serious child but he is not preoccupied with all this. He was really keen to tell me about his football and the awards that he had so I do not want it to be thought that it is his sole focus. What he told me was not determinative of my decision, and I make that clear. I have simply taken it into account as something that coincidentally accords with a view that I had formed in a preliminary way both independently and prior to Monday 25th July. It will be clear from this judgment that importantly I listened to JO but, unlike his mother, I believe him."
- The passages that are emphasised by the appellants are perfectly apparent and in particular is criticised the final sentence of paragraph 97 where the judge says :
"It will be clear from this judgment that importantly I listen to Jo, but, unlike his mother, I believe him."
- So in advancing their appeals Ms Platt and Ms Scriven particularly emphasise the Guidelines for Judges Meeting Children subject to Family Proceedings issued by the Family Justice Council in April 2010. Of course they emphasise that the guidelines stress the importance of ensuring that other parties to the proceedings have the opportunity to make representations as to a proposed meeting. That is clear from paragraph 2 of the guidelines. They also stress the final paragraph of the unnumbered paragraph in which the guidelines state:
"It cannot be stressed too often that the children's meeting with the judge is not for the purpose of gathering evidence."
- So, say the appellants, there are two crystal clear breaches of the guidelines. They had no opportunity, they were indeed denied an opportunity, to make representations as to the proposed meeting of JO and the judge. Furthermore it is apparent from the note of the meeting and the words of the judgement that the judge used the occasion plainly to gather evidence from JO as to what he had experienced within family life.
- I hope I do no injustice to Ms Platt and Ms Scriven when I summarize their second substantial ground thus: that the judge plainly in paragraph 81 acknowledged that some of the allegations advanced by the local authority were improbable: specifically in relation to others he said in paragraph 93 that although the allegations were almost all true there were:
"some exceptions not brought about by separation or conspiracy but accounts of true experience and the court can properly reject some of the allegation whilst accepting others for the sound evidential reasons set out by Professor Baker"
The judge had equally accepted that in relation to S a number of her stated recollections were manifestly fantasy rather than fact.
- There is accordingly say the appellants, an obvious inconsistency between these acknowledgements and the judge's ultimate sweep up and conclusion in paragraphs 99 and 100 where he appears to accept and validate everything within F, within F1, within JO and K.
- That forceful submission drew concessions from Ms Cook QC for the local authority to which I will come, but before doing so I record that, although the interveners have been dismissed from the proceedings, both Mr and Mrs St and Mr R attended this appeal and we heard brief oral submissions from Mr St and Mr R. The tenor of those submissions was that they simply could not accept the judge's findings and the judge's stigmatisation of their actions and evidence.
- Ms Cook's concession was to say that the local authority had never sought from the judge validation of anything except F and F1. The judge had, as a result of hearing oral evidence, augmented Section F1 by making certain specific findings in paragraph 88, all of which went against the father or the father and the paternal grandfather, but not against the mother.
- Mr Cobb QC and indeed Ms Cook have not sought to defend the judge's actions in seeing JO in the circumstances in which he did or indeed the manner in which he conducted the interview and recorded it in judgment. Their essential response is to say, whilst the judge erred, the error is immaterial because it is plain that he had reached conclusion, albeit provisional conclusion, before he ever saw JO and it is equally apparent from the structure of the judgment that he had founded his conclusions on all that he had heard in court. What he had heard from JO outside the proceedings, he recorded merely by way of footnote.
- It seems to me that my conclusions on these submissions can be very shortly stated. I accept what is advanced by Mr Cobb on behalf of the children and the concession specifically proffered by Ms Cook on behalf of the local authority. It is to me perfectly apparent that in his judgment the judge explains himself fully and cogently in paragraph 81, saying that he did not intend to make specific findings in relation to each and every allegation. In paragraph 82 he rejected the evidence of the five main carers for the children. In paragraph 83 he rejected the evidence of mother and father. In paragraph 84 he rejected the evidence of Mr R. In paragraph 85 he rejected the evidence of Mr St. He comprehensively in paragraph 86 dealt with the case of denial and the accusation of conspiracy. In paragraph 87 he validated the evidence of the foster carers. In 88 he made the three specific findings by way of addition to F1 schedule. In paragraph 89 he dismissed the ABE interviews or the quality of the interviews. In paragraph 90 he dealt with Professor Baker's evaluation. In paragraph 91 he properly discounted some of what S was saying and explained the basis upon which he understood her to say these things and then in paragraph 93 he states his conclusions in rolled up form and finally in 94 he concluded :
"Overall, my findings amount to physical emotional and sexual abuse of these children that has harmed their development in all of those respects."
It is only then that the paragraphs dealing with the dramatic development of Jo's intervention are appended by way of footnote and record.
- So insofar as there has been error, overall it would be quite disproportionate to allow the appeal and order retrial as the appellants seek. The process, properly analysed, has been full and complete and its conclusion has been very plainly rationalised by the judge on his findings, particularly in relation to the veracity and reliability of the adults in the case. It is fairly said that the judge has been too liberal in paragraphs 99 and 100 in endorsing not only F1 but also K and J, but that is an error which is corrected by Ms Cook's proffered form of order in which all that are found to pass the threshold are F, F1 with one deletion and the extension of F1 with the paragraph 99 findings.
- It is I think possible to draw two generalisations from this appeal. The first is a great deal more care should be taken in defining the judicial task at a preliminary trial. It is good practice for the definition to be contained in an early directions order so that the parties know precisely what it is that the applicants are seeking to be determined at the preliminary issue trial. That is usually achieved by a simple direction that at the trial the court will determine the issues contained within the schedule and in this case the schedule, the conventional schedule, is the document marked F. Then when the process is complete and judgment given, the order that has to be drawn to reflect judgment needs specifically to state which of the items within a schedule or perhaps that all the items in the schedule have been found proved.
- The order in this case is completely deficient in that there is nothing in the form of order, which was incidentally agreed between counsel after the judgment, that makes any reference at all to what the judge had found. There is a postscript to judgment in which the judge annexes to his judgment some appendices, but that is not in itself sufficient or satisfactory. Thus it is necessary for this court to augment the order of the 1 August to make good those deficiencies and I would accept the draft that is proffered by Ms Cook.
- The other generalisation is sought by leading counsel for the appellants and that is that something should be said about the application of these guidelines, given that this is the first occasion on which this court has had an opportunity of considering them. Now it is I think usefully recorded by Mr Cobb that the guidelines of April 2010 were long in gestation. In the case of Re W  3 FLR 1170 at paragraph 33 I recorded:
"The participation of children in private law Children Act proceedings is a matter of particular topical concern. The Family Justice Council has created a sub-committee, 'The Voice of the Child', to advise government and to stimulate professional debate as to the way forward. As a generalisation it can be said that the committee is strongly in favour of judges seeing children much more frequently than has been our convention."
- Usefully Wilson LJ and Charles LJ in their separate judgments expressed real concern at any movement towards the more frequent meeting of children and judges, suggesting that more appropriate is the post-judgment meeting simply to communicate to the child the outcome.
- When the guidelines emerged some two years later, it is obvious that this multi-disciplinary committee, with perhaps a majority who are more concerned with the interests of the child than with judicial convention, come down strongly in the stated purpose :
"...to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge's task."
- In the preamble the committee wrote :
"The primary purpose of the meeting is to benefit the child. However, it may also benefit the Judge and other family members."
- Now in another case of Re W, in this court  Civ 57, Wall LJ referred to the Family Justice Council the separate but related question of whether the conventional approach to testification by children should be reviewed and relaxed. That was endorsed when the case moved on to the Supreme Court and accordingly a working group of the Family Justice Council prepared guidelines on this related question, which were published with the President's endorsement last month, December 2011.
- So there is a useful distinction between these two levels of participation and involvement of children. If an application governed by the December 2011 guidelines results in a direction for oral evidence, the risk of contamination of the proceedings is no greater than with the involvement of any other witness.
- However, if the application is governed by the guidelines of April 2010, and results in a decision from meeting between judge and child, then the risk of contamination is obviously increased. SO in all these cases there are a range of distinctions that need to be drawn. The judge needs to consider what are the objectives of the proceedings. Are the objectives of the trial to establish what has happened in the past or are the objectives of the trial to establish what should happen in the future?
- Equally important, it seems to me, is to consider what stage have the proceedings reached? Are they continuing proceedings? Are they concluded as far as evidence and submissions are concerned but the judgment is still reserved, or are the proceedings at the post-judgment stage?
- Here of course we are concerned with a case in which the objective of the proceedings was to establish what had happened and the proceedings were at a stage where evidence was concluded but judgment reserved. It seems to me that that is the most dangerous situation in which a judge is likely to meet a child.
- Much safer is the ground when the issue is what should happen in the future and the judge is anxious to ascertain for himself the strength of the child's wishes and feelings and perhaps what has contributed to the formation of those wishes and feelings.
- Undoubtedly in this case the judge would have been far wiser to have explained to JO at the outset that the process was complete. All that remained was the formal expression of the judge's reasons for his conclusion. To give the child the impression that his mind was still open and that he was susceptible to influence, was to give completely the wrong impression. Equally, when he came to recording the meeting in his judgment, it was unguarded of him to say that he had found the child to be truthful in his recollection and statement.
- The guidelines are only guidelines. They are not specifically written by lawyers for lawyers, although they have the endorsement of the President. They are there to help judges to achieve greater confidence in meeting children and in involving them in the proceedings. However there are obvious risks, as this case well illustrates, and a judge in similar circumstances in the future needs to be aware of those risks and needs to be careful to avoid the contamination of the proceedings.
- Lewison LJ has raised the question of what is the benefit to the judge of meeting a child as identified by the council in the passage cited at paragraph 31 above. It seems to me that that plainly relates to meetings between child and judge when the judge's task is to decide what should happen in the future. These decisions, both in private and in public law cases, are very onerous for trial judges and there is a growing perception that the opportunity to meet the child as a person is a very valuable opportunity from which the judge may fortify the confidence that he or she is arriving at the right discretionary conclusion.
- For all those reasons I would dismiss these appeals but would augment the order below in the manner proposed by Ms Cook.
Lord Justice Rimer:
- I agree. Ms Platt QC and Ms Scriven QC developed to their maximum effect the point that the judge had breached the April 2010 guidelines in the manner in which he decided to and did see JO after the conclusion of the evidence in the case but before judgment. He ought not to have done either of those things without first giving all the parties to the proceedings the opportunity to make representations to him as to whether or not he should see J. His failure to provide such an opportunity was a mistake in the nature of a procedural irregularity.
- It is, however, not enough for the appellants to show that such an irregularity took place. The critical question is whether its effect was sufficiently serious to undermine the integrity of the judge's conclusions in his judgment on the factual disputes that had been the subject of the 12-day trial. In particular, if there is any justification for a conclusion that the judge placed reliance on the meeting in forming his final views on those disputes, or if the parties were left with a real perception that he may have done so, I consider that it would follow that the irregularity of which the appellants complain would have been sufficiently serious to entitle them to say that the judge's judgment could not stand.
- Both appellants have sought to make good that the judge had relied on the meeting in coming to his final views. Reliance was, in particular, placed on the opening sentence of paragraph 97 of his judgment in which the judge indicated that prior to the meeting he had not yet come to his final decisions but had formed a view on them. That sentence is, however, to be contrasted with the judge's observations in the last three sentences of the same paragraph, in the first two of which he made it plain that he had not relied upon what happened at the meeting in forming his final views and that what JO had said to him had merely, as the judge put it, "coincidentally" accorded with the preliminary view that the judge had already informed independently and prior to the meeting. In the third sentence the judge did, of course, say that he had believed J.
- Paragraph 97 is not a model of internal consistency but it is anyway merely one paragraph in a full and conscientious judgment that must be read as a whole. If it is, it appears to me to be clear that, by the time he had arrived at paragraph 94, the judge had made all his findings of fact on the relevant issues and had done so without any reference to or reliance upon the meeting with JO or any suggestion that it had played a part in their making. The meeting with JO is only referred to in the subsequent paragraphs of the judgment by way of an explanatory tailpiece; and, read in context, those paragraphs cannot in my view fairly be read as reflecting that the meeting had had any impact at all on the making of the findings that by that stage in the judgment the judge had already made, not least because I consider that the judge had made it clear that it had had no such impact.
- Whilst therefore recognising that the meeting with JO did amount to an unfortunate procedural irregularity, I consider, in agreement with my Lord, that it was not one of sufficient seriousness to undermine the integrity of the trial process.
- I would therefore also dismiss this ground of appeal. For the reasons my Lord has given, to which I cannot usefully add, I would also dismiss the other grounds advanced by the appellants. I too would therefore dismiss both appeals but would join with my Lord in his suggested amendments to the judge's order.
Lord Justice Lewison :
- I agree with both judgments and wish to add a few observations of my own on a slightly different point. It has been settled since at least the decision of this court in Lake v Lake  P 336 that an appeal lies against an order of the court rather than against the reasoning leading to the making of the order. In the exceptional case of Re B (split hearing jurisdiction)  FLR 334 the judge decided preliminary issues of fact in advance of a final hearing to take place in the following week. The judge did not apparently make any order at all, but nevertheless this court entertained an appeal against his findings of fact. Re B (split hearing jurisdiction) is not in my judgment to be taken as having overruled or qualified the basic principle in Lake v Lake. It is incumbent on lawyers representing parties to proceedings who wish to appeal to ensure that there is an order, all or parts of which they wish to challenge. That was not done in the present case, which has made the conduct of this appeal more difficult. Pragmatically the problem has been overcome but the lack of a proper order should not be allowed to become the norm.
Order: Appeals dismissed
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