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Monthly Archives: February 2013

Getting the best out of your solicitor

Some general advice and suggestions for making good use of a solicitor in a case involving children.

For most people, the only time they see a solicitor is when they are buying a house, or when something has gone badly wrong for them. So it is not surprising that if you have to go and see a solicitor about your child, you don’t know what to expect.

If you don’t see them in real life, the other place is TV and in films.

The only solicitors we see on television tend to be on crime shows where their role is limited to either (a) being quiet and nodding  or (b) saying  “Stephen, you don’t have to answer that Stephen!” just as Stephen confesses all, two minutes before the final credits.  Or those personal injury lawyers, walking along a street in crisp white blouses looking all stern and ready to kick someone’s ass on your behalf if you fell off a stepladder.

They are either nodding dogs, or rottweilers with lipgloss…

So, when you go to see a family lawyer, you will find that they won’t be like either of those things. They aren’t quiet nodders, and they aren’t rottweilers with lipgloss (well, not always)

[Three quick definitions of phrases we use as solicitors, to put into plain english  :- a solicitor is someone who works in law, who has a degree and has passed specialised training to become a solicitor, and a lawyer is anyone who works in law. All solicitors are lawyers, but not all lawyers are solicitors.   And then ‘instructions’ means the things that you tell the lawyer to do, or what your position is on any question that they ask you about.]

There are some things that you can really do to help yourself for that first appointment (especially important if you are paying for it yourself, since making things more efficient for them is cheaper for you)

  1. When you make the appointment, make it clear what it is about. Is it about a mother and father disagreeing about arrangements for a child, or is it about Social Services and your children?  If the reason for your appointment is that you’ve been sent some papers telling you that you have to be in Court on Thursday, make sure you tell them that, so that the person you are seeing knows that they will be going to Court with you on Thursday.
  1. Bring with you the stuff they tell you to bring. That will usually be, something with your photo on it, and something with your address on it (so they know that you are who you say you are), some recent payslips or benefit book (so that they can work out whether you qualify for free legal advice and can take copies) and any court papers you have been sent.

(I know that the temptation when you get court papers is to tear them up, or write “LIES”   all over the margins, but that really is going to make it harder for your lawyer, as they will be the copies they have to take to court and use)

  1. Have in your mind, or even written down, a short introduction – a page will do.  Who are you, who are the important other people in the case. Who are the children, how old are they, where do they live. If it is about you splitting up with someone, when did you split up?   And most importantly, what is the main reason why you have come to see the solicitor.   “Things were all going okay, I was seeing the children every weekend, until I got this new girlfriend, then my ex stopped all contact, that was four weeks ago”   or  “Social Services say that my son has got a broken arm and it wasn’t an accident and now they want to take it to Court”     that sort of thing.
  1. Be clear in your mind, and say to them, what it is that you really want to achieve.   “I want to get my contact started up again”   “I want my son to stay with me and not go into care”
  1. You may also want to have in your mind a Plan B – if it is not possible to get what you really want, what is the next best thing?  Having a Plan B doesn’t mean that your solicitor will give up on your main thing and go straight for that, it just means that it is better to be prepared in case your main aim is not something you can achieve straight away.
  1. Everything you say to your lawyer is secret. They won’t tell anyone else, so you can tell them the truth. The one qualification to that is that if you tell them that you have lied, and ask them to keep on with that lie for you, they won’t be able to do that. So you would have to then decide whether to get new solicitors, or whether to change your instructions to them so that you aren’t asking them to lie to the Court.

[You might be a bit surprised about that – I know that for most people, lawyers and lies go together like wasps and strawberry jam, but actually, there are really strict rules about it. A lawyer can’t ever lie to the Court or mislead the Court.  They can legitimately do their best to put you in the best possible light, and to take any criticisms that other people are making about you and defend you against them, but they can’t say that you did X or Y, or didn’t do X or Y, if you have told them different.   The rule is that they can make you look good, or less bad, but they can’t lie for you]

  1. Your lawyer is going to have the best chance of being able to achieve what you want if there are no surprises in store for them. It is no fun preparing a case for Mother Theresa, only to get to Court and find that the other side have lots of evidence that you drink like a fish and were in prison for punching policemen in the face.  Best to know that sort of thing up front, so the lawyer can deal with it and plan for it.
  1. Give the lawyer the best way to get in touch with you – whether that is mobile, email, or by letter. If there are specific problems (you can send me a text, but I never check my voicemail) then let them know.  If you change your mobile number or your address, let them know.
  1. If during the meeting, or afterwards, you feel like you don’t understand something, just ask.  You have come into a world that is strange, that has weird language, weird customs and everything is new to you. It really is fine to say “Hang on a second, I’m not sure I get what a CAFCASS officer is, can you explain it again?”
  1.  At the end of the meeting, make sure you know what is going to happen next. Are they asking for you to do anything? If so, what is it, and when should you do it? Or are they doing something for you, in which case what is it, and when would they need to talk to you or see you again?

Going to Court

  1. Make sure you know where the Court is, and what time you’ve got to be there. You usually want to be in Court forty minutes or so before the hearing is due to start.  Be aware that like a doctors surgery, everyone is told to be there at ten or two, so you might not be the first case to be heard and there might be waiting around.
  1. Get to Court on time.  Take the papers with you, and when you book in, say which case you are there about and who your solicitor is.  If you can’t make it or you are late, ring your lawyer to let them know.  They may have booked someone else – a barrister to come to court and speak to the court on your behalf. They will know the background to your case and they will probably have some additional things they want to talk to you about.
  1. Probably not a good idea to talk to anyone else who is on the case or sit near them, just find a spot on your own until your lawyer finds you.
  1. As tempting as it is to go up to the social worker / your ex and shout “Happy now are you?”  or similar stuff,  you should really avoid it.
  1. When you go into Court, sit on the row directly behind your lawyer. It is Court manners to all stand when the Judge/Magistrates come in, and go out.  (Usually there will be someone official who says “All stand”).  Even if you are a rebel-without-a-cause  “nobody tells me what to do” sort of person, just stand up, it really isn’t worth causing a fuss over.
  1. Ideally in the Court hearing, unless you are giving evidence, the only person you should speak to is your lawyer, which you will do very quietly. Don’t interrupt or shout out when other people are talking, and don’t sit there whilst other people are talking saying “well, that’s lies” and so on. If someone does say something that is wrong, or a lie, or a mistake, gently get your lawyers attention and let them know what you have to say about this.
  2.  Storming out of the Court room, slamming the door never looks good. If you need to leave the room, just quietly say to your lawyer that you have to go outside for a bit, and why. And when you come back in, don’t make a big fuss, just come and sit down behind your lawyer.
  3. After the hearing, make sure you understand what happens next, what anyone expects you to do, and if the case is coming back to court on another day, that you know when that day is.

Giving evidence

  1. If you think you are going to have to give evidence, ask your lawyer beforehand how that works – where you stand, how to speak and so on. Your lawyer can’t tell you how to answer certain questions (that’s called ‘coaching’ and is banned) but they can give you tips on how to give your evidence and how to keep calm if you find yourself getting confused or upset or angry.
  1. You will give evidence from the witness box. The first thing you will have to do is give a promise to tell the truth, and that promise is written down on a sheet of card for you to read out. You can swear on the bible, or other holy book, or you can ‘affirm’  which means reading the promise out without having your hand on a holy book, if you aren’t religious.
  1.  The top tips in giving evidence are that everyone in the room is trying to write down what you say, so speak a bit louder and a bit slower than you normally would,  don’t take anything personally, and it is not a quiz show where you have to answer immediately so if you want to take a few seconds to think about your answer that is fine.

Hopefully, and this is the idea of the whole thing, you will find a lawyer who listens to what you have to say, gives you good advice and who you feel you can trust and who is doing the best job they can for you.

If you don’t, you need to try to sort this out. Not by simply not communicating with them, or by ringing them up and shouting, but by saying “The other day when X happened, I don’t think you really did what I wanted. Can you explain why that happened?”

If you can’t resolve it by talking through your problem, then you may want to get another lawyer, maybe someone at the same firm, maybe a different one, and you should be able to get guidance on how that works.

But if you don’t talk to your lawyer, especially about any big changes in your life or your case, or about your worries or doubts, they won’t be able to help you, and that is what they are there for.

“Don’t ever invite a Judge into your house, you silly boy, it renders you powerless”

 A peculiar little case, considered by the High Court, and not just a cheap opportunity to quote from The Lost Boys, honest. [But come on, when would Suesspicious Minds ever pass up an opportunity to reference the Lost Boys?  “Burn rubber, does not mean warp speed!”]

Re AMV and MV 2012

http://www.familylawweek.co.uk/site.aspx?i=ed111643

It isn’t an important case, save for those involved, nor does it say anything vital about the law, but it is one of those interesting ones that I collect and write about where the mind boggles at how cases sometimes end up being conducted.

The Judgment is very short. Here is the nub of it.

A private law dispute where the mother and the children were living sometimes at her own home and sometimes with the maternal grandparents. The father alleged that the mother was living full-time with the grandparents, in an unsuitable property and not living at her own address at all.

The District Judge decided that the best way to assess that was to go out and see for herself.

So the mother was asked to agree to that site visit, there and then, and given 15 minutes to decide.  [I like to imagine that the Judge was also loudly humming the Countdown theme tune, but this did not actually happen]

Obviously, saying no might have given the impression that there was something to hide, so with some confusion, she agreed.

It hadn’t been possible to contact the grandparents to forewarn them / ask them, so the Judge, accompanied by the mother, father, counsel and the CAFCASS officer set out on the journey.

All parties duly arrived at the mother’s house, were permitted entry and apparently combed the premises, opening doors, looking in cupboards and fridges, even looking in wastepaper baskets. I was told that the District Judge had specifically looked into a dustbin and, as a result, made an express finding, arising from this as to the likely occupancy of the house.

6 On completion of this outing, the parties (still in the two separate cars) drove to the maternal grandparents’ property. On arrival they were given admittance. The maternal grandparents were to an extent taken by surprise. They did not have independent legal advice. The process of investigation, as already described, then took place in their home, with doors being opened, the contents of drawers being investigated and the like.

7 The parties returned to court. The entire outing took about one and a half hours. The District Judge made findings in reliance upon what had been seen – indeed, a great deal of cross-examination of the CAFCASS officer took place on the basis of counsel’s perception of the state of the two homes.

It is not going to take a genius to work out that the Court having made decisions based on these site visits, the mother was going to appeal those decisions, and that she was going to succeed in that appeal.

To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.

9 Although I have not been addressed in detail by either counsel, it would also seem to me it was, prima facie, a breach of the mother’s Article 6 rights to a fair trial. It is not the role of a judge in such a situation to play detective and enter a person’s home. 10. More importantly this Judge entered the home of a third party in order to elicit evidence. Prima facie, that was a breach of the maternal grandparents’ Article 8 rights.

To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR. A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate.

Moreover, the method of approaching third parties and seeking entrance into their home in those circumstances as I have stated left them with effectively no choice. I doubt that they felt that they had any alternative but to open their front door and make the Judge, counsel, their daughter and their former son-in-law welcome in their flat.

The District Judge found their home was cramped, dirty and untidy. Hardly a matter which was appropriate in all the circumstances.

10 I consider that it is inappropriate for any District Judge to seek to deal with a case in this manner. Especially as the site visit came at the Courts suggestion without any or any sufficient time for mature reflection let alone legal advice.

If there are real concerns that children are not being cared for properly (and that was not an issue in this case) it is a matter that can be dealt with by social services who are entitled to, and do make, regular unannounced visits.

I deprecate the method used by the District Judge and would urge that nothing similar occurs in the future.

I suppose the process of the District Judge effectively making an unannounced visit and looking in dustbins, and the parents counsel cross-examining the CAFCASS officer about a home visit to which not only they, but also the Judge had also been present (and thus technically witnesses about) was slightly more scientific and forensic than the Judge starting the judgment with “Ip dip sky blue, it is not you” , but not all that much more.

Please, judges and counsel of the land, keep making such extraordinary and peculiar decisions, it brightens up my day.

[The usual tangent – it seems that the lore that a vampire must be invited into your home comes from Bram Stoker, in “Dracula” “He may not enter anywhere at the first, Unless there be some of the household who bid him to come; though afterwards he can come as he please.” – where Van Helsing is recounting the powers and limitations of the vampire, and wasn’t around as a myth before then]

we trashed the one who looked like twisted sister - totally annihilated his nightstalking ass

Vulnerable witnesses revisited

The Court of Appeal have looked again at a case involving the issues of a vulnerable adult giving evidence.  Re M (A Child) 2013

Sadly, given how often this crops up, they have not given any generic guidance for the Courts to apply, but the case throws up some interesting issues.

http://www.familylawweek.co.uk/site.aspx?i=ed111952

 

The issue related to a finding of fact hearing, where the father was one of the adults “in the frame” for causing the injury to the child.  Noting his cognitive difficulties, a cognitive assessment was undertaken of him.

 That concluded that he was not capable of instructing a solicitor, but was capable of giving evidence. He would not be capable of providing a narrative statement.

 His capacity to give evidence was both fluctuating and deteriorating and before the fact finding hearing, a further updating report on his cognitive abilities was commissioned.

 This arrived the day before the fact-finding hearing was to begin

 

6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father’s capacity to testify had deteriorated in consequence of mounting stress and anxiety.  Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility.  In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:

“He should be offered a ‘supporter’ whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers.”

7. Then, below the bullet points, Dr North wrote:

Mr Smith becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link.”

And then, importantly, in the concluding paragraph:

“Mr Smith is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings.”

 

Now, obviously, none of this was in place the next working day, and those representing the father made requests that such arrangements be made.

 The Judge rather ‘parked’ that issue, saying well, we will all try, counsel and myself, to make it easy for the witness“, but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father’s performance. 

 The Court of Appeal describe this as a ‘high risk judicial case management decision’ and of course, not actually determining the application for the steps proposed by Dr North to be taken or not taken, robbed the father of either having those safety mechanisms or being able to appeal the decision for them not to be provided.

This next bit is very peculiar –the Guardian was charged with the role of being the ‘advocate or intermediary’ to help the father in the witness box.

 

The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary.  He had no previous experience of that role unlike Dr North.  He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.

This seems to me to have been an intolerable position both for the father and the Guardian to find themselves in.

At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services.  He said, by way of self-criticism, that he felt that he had failed the father

The Court of Appeal came to the conclusion that the father had not been fairly treated by the process and that his article 6 right to a fair trial had not been properly adhered to, and directed that the finding of fact hearing be re-tried.  [underlining mine for emphasis]

 

21. By way of conclusion, I would like to express my appreciation of the burden borne by  [the Judge] , who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases.  Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date.  Had she acceded to Ms Storey-Rae’s application, the consequence would have been months of delay.  So I would wish to be in every way supportive of the judge’s general duty to manage all cases to achieve targets.  I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability.  It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae’s application of 13 April.  I think she fell into error in adopting the “let’s see how we get on” management policy.  As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.

22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity.  It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal.  Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place.  Some steps were taken to ease the mother’s contribution by ensuring sight lines that did not bring her into direct eye contact with the father.  It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.

23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights

 

It does seem that the importance of this case will be in those representing such vulnerable persons to secure detailed expert evidence addressing the difficulties of the client in giving evidence and what can be put in place, and in persuading the Court that such recommendations need to be adjudicated on and not merely ‘parked’

 Given what we know of the Legal Services Commission, I am unclear as to how funding to obtain the intermediary or advocate to assist father in the witness box would be obtained, but those efforts would have to be made. It must be manifestly unfair for a party to the proceedings to have to take that neutral role.

“Lancashire Hot Pot(ato) “

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  – NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

“If you change your mind, I’m the first in line”

 The Supreme Court decide that a Judge CAN change their mind after delivering a Judgment.

I blogged about the case in the Court of Appeal here :-

http://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

 In brief, a Judge heard a finding of fact hearing about an injury to a child, gave a judgment that the father was the sole perpetrator. After judgment, father’s representative sent in some aspects for clarification  (i.e things that they considered had not been properly considered in the judgment) and some months later, at another hearing, the Judge announced that she had changed her view of the case and that it was not possible to exclude mother from having caused the injuries, and stopped short therefore of a positive finding that father had caused the injuries.

 The mother, who had of course, been off the hook, in the initial judgment, appealed.

 The Court of Appeal decided, two to one, that the Judge could not change her mind about the judgment she had given (save for if some fresh evidence had come to light) and that she was bound by her first judgment.

 The father, understandably, having been all the way in, then half-way out, then all the way in again, appealed that.

 The Supreme Court determined the issue in Re L and B (Children) 2013    

 

http://www.bailii.org/uk/cases/UKSC/2013/8.html

 One of the things that troubled me about the Court of Appeal decision was the unspoken but inexorable consequence that although an advocate unhappy with a judgment is told to raise points that needed clarification or exploration with the judge prior to any appeal, if doing so cannot lead to a Judge changing their mind, it seems a rather fruitless exercise.   I think for that reason, the Supreme Court were right in giving the Judge power to change the findings made if the representations swayed her.

 The Supreme Court concluded here that what had happened in reality, was the Judge reconsidering the conclusions reached in the light of the representations made by father’s counsel, and had changed her mind accordingly.

 

  1. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

Exercising the discretion in this case

  1. If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the “general slackness” that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind was “seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator” (para 56). Sir Stephen Sedley held that something more than a change in the judge’s mind was required, because “it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice” (paras 79, 80). Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. . . . the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis”. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.
  1. The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the child’s placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.
  1. Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. As the court pointed out in Re Harrison‘s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.
  1. For those reasons, therefore, we ordered that the father’s appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judge’s decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half-brother and maternal grandparents under a care order and, after a settling-in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.

 

 The Supreme Court then took a look at the issue of whether a Judge could change her mind post the order being sealed. (In this case, the sealing of the order had taken place long after the judgment had been given, or maybe it did, and there is authority to suggest that a judgment cannot be changed after the order is sealed or maybe there isn’t)

 

  1. On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?
  1. The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her daughter in a fact-finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part-heard, Munby LJ continued, at para 21:

“Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”

  1. This court has since agreed with that proposition. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that:

“It is now well-settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)

  1. There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the child’s welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the child’s injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is 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, but particularly to the children, if the only way to correct such an error were by an appeal.
  1. This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order.
  1. Both 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 their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.
  1. Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child’s injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother’s apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.
  1. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.
  1. On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not.
  1. In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.
  1. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.
  1. On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.

 

 

 

They then realise that this is really really really difficult, and sidestep the question in a way that any rugby fan would admire.

 

The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place.

 

That, for my mischievous mind, raises the interesting question of what happens if a Judge delivers a finding of fact judgment, and instantly in front of the parties, produces an order that she has prepared setting out the findings that were made and stamps it. 

It seems that the judgment is then frozen, and can’t be altered, and that she would not be entitled to change her mind despite any representations, and is simply inviting the wounded parties to put up and appeal, or shut up.   That’s probably grounds for appeal in itself.

Probably good practice is for a short window of opportunity (say the appeal window) to be given, before the order is then stamped, and the Judge considers only representations made within that window.

But, what if, as happened here, father makes representations, and the judgment changes? Does mother then get a second window to make her own representations, to try to change the judge’s mind a second time?  Her window of appeal must, it seems to me, start from the time that the Judge settles an order arising from the judgment  (you appeal orders, not findings). 

And if mother succeeds, is that the end of it, or does father get another crack at it?

Could we end up with an interminable oscillation between judgment and representations to alter that judgment?

Oh Lord, won’t you buy me, a McKenzie Friend ?

 

The Court of Appeal considered the role of McKenzie Friends, post the Practice Note guidance, in the case of Re H  (Children) 2012  Neutral Citation Number: [2012] EWCA Civ 1797      [and I know, my title is awful, but it does scan, if you sing it to yourself]

 Although the judgment was ostensibly given in June 2012, it fluttered across my computer screen today. Not quite sure why there was such a delay.

 Also, sadly, I haven’t yet been able to track it down on Bailii, so can’t give you the full transcript  (I have it, but it is behind a paywall, so can’t link it)

It raises some interesting points, not least being that almost inevitably, for private law proceedings, once we get to April and the State takes away free legal advice for almost all cases, we are going to see more cases conducted by parents in person, and thus more McKenzie Friends.

 

I can at least link you to the guidance

http://www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_July_2010.pdf

 For those of you who may not know, a McKenzie Friend is someone who assists a litigant in person with their case. It happens generally when that person does not have a lawyer. The McKenzie Friend does not have to be a lawyer, or have any legal background (though some do) and there are some rules about what they can do.  They don’t get to speak in Court * or ask questions, but they can help the person understand what is going on.

 

{*unless they ask for rights of audience in a particular case and are granted them, which will be decided on the facts of the case. Rights of audience is our special medieval lawyer language way of saying “Is allowed to speak to the Judge without being in the witness box”}

 

From the guidance

What McKenzie Friends may do

3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case

papers; iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii)

manage litigants’ cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

Now, as in any walk of life, there are bad McKenzie Friends, and good ones, just as there are good and bad Judges, lawyers, social workers, dentists, South African athletes and so forth.  I happen to have met with one through the writing of this blog who I think is an excellent one, balanced though passionate, and smart as a carrot*.  {*which is Northern for smart}

 The guidance really came about to try to get some clarity about the role and minimise the harm that a bad one can do in a case. If you ever wonder about the reason for rules being introduced, I suggest you look on a Court report website and type the name “Pelling” into the search box.

 Now, as  Justice Wall observes in this case, cases involving McKenzie Friends don’t often come before the Court of Appeal   (I think what he means is where the involvement of the McKenzie Friend was an active issue, as I know of a few successful appeals where a McKenzie Friend was involved and very helpful), and he believed this to be the first case since the Guidance where it was an issue for the Court of Appeal.

 

In this one, the Judge at first instance had refused the particular McKenzie Friend who was assisting the father. The Judge had felt that the particular McKenzie Friend had gone further than the guidance and had caused the mother to feel intimidated.  She was at pains to make clear that father could obtain another McKenzie Friend for the hearing.

 The appeal also revolved around the father’s desire to file statements from ,and call, a number of character witnesses.  The Court of Appeal politely explain why character witnesses (which seem to be important evidence so far as a parent is concerned) aren’t helpful to the Court.

 

People in the appellant father’s position frequently take the view that “character”witnesses are of particular importance in Children Act cases. In fact, often the reverse is the case. A witness who knows one of the parties, even if he or she has seen the party in question with the children, is rarely any help to a judge deciding what is in the best interests of the child or children concerned in the particular facts of the case.

 

The reasons for this are threefold. Irrespective of the quality of the witness, often the witness is partisan in favour of one party rather than the other. Secondly, what matters of course is the judge’s assessment. And thirdly, what also matters is that the witness can rarely give direct evidence about the issues which the judge has to decide.

 

Now, we turn to the reasons for refusing the McKenzie Friend

 She had adjourned the case on a previous occasion in order, as I said, to ensure that she could familiarise herself with the papers and she heard a number of submissions from the solicitor acting for the children, including evidence that the father’s McKenzie friend had overstepped the mark and prepared a document in the case template which referred to the name of a child who was nothing to do with the proceedings, even though the father asserted that 80 percent of the work had been done by him.

  15. The judge concluded her short judgment with these words:

“5. I am concerned about the fact that there is a crossing over it seems to me here of a McKenzie Friend into the realms of conducting litigation. So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much. I do not accept the explanation for Joshua [that is the name that was included in the father’s application]. I am not going to permit [the McKenzie friend] to be a McKenzie friend, as I am invited to do so, not only by the mother but also by Mr Philips on behalf of the children. I also think it is highly likely that she was intimidated in the manner she has described and of course given that the hearing is in January 2012, Mr [H] has plenty of time to appoint another McKenzie friend. If required to do so, I am happy to give further reasons, but this case is only allocated 30 minutes in what is a very busy list.”

 

 

The intimidation thing is quite case specific, but I was interested in the suggestion that a McKenzie Friend contributing 20% to a document is 20% too much.

 

Would the Court of Appeal accept this or reject it?

 

Even if one takes away the finding of fact that the mother was intimidated from that hearing, there seems to me to be adequate reasons for the judge to have acted as she did. She also read the curriculum vitae of the father’s McKenzie friend and referred to the guidance.

 

16. For myself, I have come to the clear view that this was a case management decision by the judge exercising her judicial discretion, albeit in a swift and it must be said somewhat rough and ready way; nonetheless it is in a way with which this court should not interfere. It needs to be said that the reasons that she gave are perfunctory but, in my judgment, reasons do not have to be elaborate if they are stated briefly and shortly and the fact that the judge was sufficiently straightforward to say that she could give fuller reasons if she wanted to, given a longer period of time, does not mean that the reasons she did give were in any way inadequate. If they had been inadequate, it may be that I would have expected certainly that she would have been asked to elaborate upon them, but she was not. This is a case management decision which in my view the judge was entitled to make and I would therefore dismiss the appeal.

 

17. It is worthwhile pointing out, however, in view of the submissions made to us this afternoon by the appellant father that the judge did refer to the guidance, reported at [2010] 2 FLR 962, which makes it very clear what McKenzie friends may not do:

       “4) MFs may not i) act as the litigants’ agent in relation to the     proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.”

 

 The following paragraphs of the guidance also set out the duties of a McKenzie friend and what a McKenzie friend cannot do:

 

(18) “Rights of audience and rights to conduct litigation

 MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.

 

(19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF.

This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

 

(20 )Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. Thecourt should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.”

 

18. In those circumstances, on the findings which the judge made, my clear view is that she was entitled to do what she did. I would therefore refuse permission to appeal paragraphs 4 and 6 and I would dismiss the appeal in relation to paragraph 1.

 

It seems to me, therefore, that the Court of Appeal have given a degree of backing to a very broad construction of the prohibition on the guidance that they must not “manage litigants’ cases outside court, for example by signing court Documents”   as including also having a hand in the construction of such documents   (if even a 20% contribution is 20% too much, then that suggests no input at all)

 

That seems to me to be quite a significant matter – there’s obviously a large space between the McKenzie Friend “conducting the ligitation”  which is prohibited, and having no input into the construction of documents prepared for Court at all.

 

Does that mean that a McKenzie Friend is prohibited from looking over a document prepared by the litigant in person before it is filed and suggesting that a point could be made better, or that a passage be toned down, or correcting a factual inaccuracy? What about typos?  What about where the litigant in person is asserting something that the McKenzie Friend, from experience and knowledge knows is wrong in law  (like “I am entitled to an equal share of time with my children”  or “The father has to prove his allegations against me beyond all reasonable doubt” ?)  – what about where there’s a basic mistake in style  (addressing the Judge as “Your worship”) ?

 

Common sense says to me that of course the McKenzie Friend should be able to have that sort of input, where the Court has agreed to a request that a McKenzie Friend be involved.  But the wording  “So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much.” which was not held by the Court of Appeal to be wrong, still less plainly wrong, leaves the door open to that sort of ambiguity.

 

It would seem that for safety’s sake, an application ought to be made for the McKenzie Friend to conduct litigation – this being something traditionally done where the McKenzie Friend intends to seek rights of audience in the case, and if that is granted, then the McKenzie Friend would be allowed to assist in the shaping, crafting, finessing and polishing of court documents. That would be using the provisions in paragraphs 18-20 of the Practice Note, and is probably something that most careful McKenzie Friends already do.

 

[As one of my traditional digressive footnotes, I became sidetracked into wondering whether McKenzie was the name of the Friend, who first did this, or whether there was a McKenzie, who HAD a Friend…

 And find that it was a divorce case in 1970 between Mr McKenzie and Mrs McKenzie , where Mr McKenzie’s former solicitors had kindly sent a young Australian barrister along to assist Mr McKenzie by taking a note and explaining things as they went along, little knowing what a chain of events would be set in motion by this

 

http://z2k.org/wp-content/uploads/2011/09/MCKENZIE-v-MCKENZIE-1970-3-W-L-R-4721.pdf

 
“Every litigant is entitled to have the assistance of a friend nearby and that friend is entitled to assist the litigant by prompting him, making notes or suggestions, giving advice, and suggesting ways in which the litigant can cross-examine the witnesses: per Lord Tenterden C.J. in Collier v. Hicks (1831) 2 B. & Ad. 663, 669. While it is true that nobody can take part in the proceedings as an advocate unless he is qualified so to do by being a member of the Bar or in the lower courts a solicitor, there is no prohibition on any person assisting a party to the proceedings in other ways, e.g., by passing notes, giving advice, or prompting.

 The judge said that Mr. Hanger could not take part in the proceedings. He was merely sitting next to the husband and making suggestions to him”

 That also took me to the charming reference within McKenzie v McKenzie to this passage :-

In saying that I have in mind Tucker v. Collinson as reported in The Times, February 11, 1886 (reported on another point in 34 W.R. 354). In that case a lady, stricken with court dumbness when her appeal was called on, was not allowed to have the assistance of somebody who wished to help her. But that ruling turned on some very special provisions of the in forma pauperis procedure then”

 

Which raises two issues – one, why on earth would anyone think that an ordinary person would need assistance to understand commonsense everyday language like in forma pauperis, and two – I love the idea of an age where one could be stricken by Court dumbness. It has certainly happened to me from time to time, and I had no idea it was a known condition. In future, I will simply say that “For the moment, I am inhibited by the affliction referred to in Tucker v Collinson” and hope to get away with it

 But back to my original digression

 If the Court had taken the alternative approach of naming the assistant after the person who was helping, rather than the name of the client being helped, they’d have been Hangers-On, rather than McKenzie Friends.

Reversing the dilution of “homeopathic’ Guardians?

The Ministry of Justice have published a series of consultation documents, setting out the contribution they suggest various ‘stakeholders’  (yuck) should bring to the table in our brave new world.

{I do like, though it is not the thrust of this post, that the Her Majesty’s Court Service contribution is to (a) send out the orders that the lawyers type up and email to them within 5 days, which doesn’t sound that onerous and (b) to have Court rooms available and Judges to sit in them. The phrase ‘don’t go mad’ springs to mind } 

The CAFCASS one interested me, to see what the MoJ think CAFCASS ought to be doing on the ground. 

 Warning, I am going to be snarky about our current ‘homeopathic Guardian’ model, not because I think that Guardians on the ground are bad or lazy (though of course, there are some who are, but just as you don’t judge GPs by Dr Shipman, and in the words of the Osmonds, one bad apple don’t spoil the whole bunch), but rather because I think their organisation has sold representation of children and the vital role of check and balance of robust Guardians to a LA down the river. 

They have responded to an unprecedented increase in demand for the services by watering down the role of representing children to such an extent that there’s barely any actual representation of children by Guardians left, and what we have is a ‘view on the papers’,  and run the risk that eventually their services will be dispensed with.

 I have seen many cases over the last few years with Guardians who have never actually seen a parent outside of the Court building, and where two visits to see a child is something of a miracle and something to be grateful for rather than being scope for savage criticism.

 So, this is one of those rare documents which is actually worth reading in full – it is fairly short.  I’ll pick out the good stuff here

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/cafcass-care-proceedings.pdf 

By first hearing

 The children’s guardian will provide assistance to the court at the first hearing in relation to the threshold, and the adequacy of the assessment carried out, or proposed, by the local authority.

The children’s guardian will appraise the proposed plans for the interim and, to the extent set out by the local authority, for the longer-term care of the child – whether by parents, others with parental responsibility, and/or other adults – ensuring that the local authority has given the plans due consideration. The children’s guardian will also assesses whether the plan is optimal, within the resources available to the local authority taking account of the child’s timescale.

 

[“Appraise” the plans is a lofty goal, quite often these days, “reading them” is a bit beyond the homeopathic Guardian model.  See, I did warn you about incoming snark at the outset]

By the time of the CMC   [which, let’s not forget will probably be by week 2 of the proceedings in the new model]   – underlining is mine

5. By the time of the CMC the children’s guardian will independently evaluate the local authority case to differentiate between thorough local authority applications and those where the guardian considers further work is needed. For the latter type of case, the children’s guardian will be intensively involved in the case on behalf of the child. The advice of the children’s guardian at the CMC is intended to help shape the case, and to support judicial case management.

6. The children’s guardian will read relevant parts of the local authority case records in order to gain a thorough understanding of the impact of previous interventions by the local authority and others. The children’s guardian’s analysis presented to court will be informed by direct work with the child and/or by observation of contact between the child and his/her parent(s)/carer(s).

7. The children’s guardian will analyse the local authority’s assessments and investigations, both direct and commissioned from others, to establish if all that could have reasonably expected to have been done at the pre-proceedings stage was done. This will be supported through constructive dialogue with the child’s local authority social worker.

8. The children’s guardian should, by the time of the CMC, see, hear, and know enough about the child to offer a clear view to the court about the child’s ascertainable wishes and feelings and the issues in the case affecting the child’s current and future safety and welfare. This includes assessing the benefit to the child from particular additional assessments and bringing to the court’s attention the child development implications of any delay within the case.

 

 

You know what? I would bloody love it, if Guardians were back doing this. Seeing the child, seeing the family, reading the records, grilling the social worker about the case, testing the evidence out in the field. That’s how we used to do it, and that was a period where we didn’t end up with a plethora of independent experts because the Guardian came to the table with a meaningful contribution.  That also reads to me as though the MoJ envisage that we will actually get the Initial Analysis on paper that is a requirement of the PLO but is a ‘custom more honoured in the breach than the observance’

 

For IRH/final hearing  (and throughout) – again, underlining mine

 9. The children’s guardian will advise the court about the possibility of the child’s attendance at court, and about any matters that s/he considers that the court should be informed. This advice may be given orally or in writing.

10. The children’s guardian will ensure that any reunification plan for a child is likely to be viable and to provide stability and permanence, especially if the child is returning to a home environment that was previously abusive or neglectful.

11. A written report must be provided to the court by the children’s guardian unless directed otherwise. The children’s guardian will produce high quality reports that are focused, analytical and evidence based, utilising the Cafcass analytical writing template. This will support robust judicial decision making and case management. Reports will generally be 3-6 pages in length, though the examination of a disputed or contentious issue may result in a longer report. Cross referencing information held elsewhere within the case file, in accordance with the Cafcass reporting to court policy, will ensure reports are succinct. Reports and evidence given in court will be informed by evidence from research.

 

12. The children’s guardian will provide the court with an analysis of parental capacity to meet the subject child’s/children’s needs, taking account of the timescale within which the identified needs must be met.

 

13. The recommendations of the children’s guardian will reflect the child’s needs in terms of placement and contact arrangements, explaining how these arrangements are likely to safeguard and promote the child’s welfare

 Not 100% sure that the combination of robust analytical reports and a 3-6 page aspirational length really goes together, but I applaud the spirit of what is here.

In a practical sense, that sort of length will mean that our current theme of Guardians not doing their own welfare checklist, as a counterpoint/comparator to the LA version, is likely to continue.  I LIKED, even as an LA lawyer, having an alternative version of the key analytical checklist before the Court, and would like to see it come back.

Let us see whether this actually gets adopted by CAFCASS, even if it does come in. After all, the PLO is routinely ignored.

What might be different is that, given the tone and direction we are heading in, that parents representatives will be forced, if they want an independent assessment, to persuade the Court that the Guardian’s contribution isn’t a reason to refuse that, and comparing it to what the MoJ say the Guardian should be bringing to the party would be one way of doing that.

 

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