I have just read the latest scandal piece about the family justice system by Christoper Booker. Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published. [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn't any of those - so will keep an eye out]
As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.
Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.
Here is his story
Let’s break it down into the core allegations that are made
1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.
2. Mother removed him from foster care
3. Mother was sent to prison for removing him from foster care
4. Whilst in prison, she was assaulted by prison staff and crippled
5. That she was then deported to America
6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought
7. At a hearing in April, at which her McKenzie Friends “could not be present”, Mrs Justice Simler decided that the case was entirely without merit (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )
7a That Mrs Justice Simler is “the latest recruit to the High Court team” [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely. EDIT - it does appear that she became a High Court Judge in October 2013, so I stand corrected.]
8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000
9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.
I am fairly sure that points 6, 7 and 8 ARE true. We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing). You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.
Well, not quite.
The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible. One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order. It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad. That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk
Here is the deal
If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.
The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it
In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.
You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case. You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.
So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court. Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.
[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that's probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]
It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012 http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.
There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.
Mr Booker’s previous column about this woman http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]