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“Here they are, they’re so appealing…”

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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