Monthly Archives: February 2013

Court of appeal sweepstake

Posted on February 12, 2013 by suesspiciousminds

Yet more pondering about the 26 week timetable unofficial roll-out a year in advance of the projected Children and Families Bill becoming law, and whether there is a hint in the Family Modernisation second update?

 

 

This continues to trouble me, and I know others. I warned way back in April 2012 that the new Court computer system seemed to have implemented by stealth a presumption that a care case would finish in 26 weeks, and that reasons for not doing so would have to be recorded, and that this was inevitably going to have an impact on the timetabling of cases

 

 

https://suesspiciousminds.com/2012/04/13/gone-till-november-ill-be-gone-till-november/

 

 

 

And here I blogged  back in October about the issue being raised before MacFarlane LJ and Ryder J at the Nagalro conference, and whether or not it was said that there was no such policy of 26 weeks being the starting point and whether a Judge applying such a policy ought to be appealed. We have never got to the bottom of what was really said

 

https://suesspiciousminds.com/2012/10/19/ive-got-twenty-six-weeks-to-go-twenty-six-weeks-to-go-or-have-i/ 

 

 

I am aware that around the country, orders are being made, setting out whether a case should be concluded within 26 weeks or not   [not “This case does not require a 40 week timetable and can be concluded by week 26”, but the reverse “This case has issues that require that the proceedings go beyond week 26”].

 

And they are made at a very early stage of the proceedings.

 

Without a doubt, the Court has the power to determine when a case should be concluded, and set a timetable for the expeditious resolution of the case, and the fixing of that timetable is within the judicial discretion. Robust case management is a vital judicial function, and avoidance of drift and unnecessary delay is a commendable goal.

 

And without a doubt, although the law currently (through the Public Law Outline) works to a timetable of 40 weeks, the Court has the power and discretion to set a timetable that is less than 40 weeks, or indeed more, in accordance with the child’s welfare.

 

What troubles me is the importation of a presumption that the starting point is 26 weeks when there is no law to that effect.

 

 This is not a trivial matter. Decisions about whether pieces of evidence, including independent assessments, can be obtained, are made on the basis of whether they fit with the timetabling of the case, and there is a considerable difference between 26 weeks and 40 weeks  (which is our current ‘starting point’, that can, as I have said, be deviated from)

 

The other pivotal consequence of this is that setting a 26 week timetable as a starting point  (before any of the accompanying measures such as pre-proceedings work being improved and CAFCASS playing a larger role in the early stages of the proceedings have been formulated, never mind implemented) means that a parent simply has far less time to demonstrate change, or to accept the need for change.

 

Those 14 weeks, or 3 ½ months, are a period where the parent could attempt to evidence growth in insight and change, or evidence having tackled the problems. If we remove that, there are going to be cases when a parent who would have made use of it will not have that opportunity.

 

What worries me is NOT deciding the case quicker, it would clearly be better for children to have the decisions made for them promptly and that is in accordance with the often quoted but often ignored principle of no delay enshrined in the Act.  No, it is my underlying fear that cases will end up with different outcomes when they are decided in 26 weeks than if they had run for 40 weeks.

 

 

This is the latest glimmer on it, from the Family Modernisation second update. Bear in mind that this is not a statutory instrument, nor a practice direction, nor guidance, nor anything that could be relied on by law, but it is in a sense a marker.

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_implementation_newsletter2.pdf

 

 

This is the passage I am interested in :-

 

One of the key clauses in this Bill is that care or supervision orders should be determined without delay and in any event within 26 weeks beginning with the day on which the application was issued.

 

Although this 26-week time-limit will not be a legal requirement until the Act is enacted (probably in April 2014) the President is keen to encourage those involved in the family justice system to continue to use the interim period before implementation to develop their practices to prepare for commencement. Cases should be managed by judges to reach a just conclusion without unnecessary delay.

 

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case

 

 

I would have preferred this to be far less ambiguous. The first two paragraphs I agree with entirely. The third I find to be unclear  – it doesn’t condemn the practice of setting 26 week timetables a year in advance of this becoming law. It doesn’t say, what one would have hoped, that there is no starting point of 26 weeks, and that whilst it might be appropriate in some cases, the timetabling exercise should not be carried out with that “starting point” in mind.

 

It is nowhere near as strong as the remarks which were reported to have been made by the senior judiciary at the Nagalro conference (though as we know, we shall never really get to the bottom of what precisely was said)

 It is perhaps interesting, and illustrative of the fact that the 26 week target  has indeed been secretly rolled out that the wording is not

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in 40 weeks or less dependent on the facts of the case

 

but the reverse, that it may be 26 weeks or more.  Is this a tacit endorsement of Courts having in their mind 26 weeks as the goal to aspire to?

Given that we know that the Court computer system is recording the cases that finish beyond 26 weeks and reasons for this, are there performance indicator statistics being gathered from that computer system that shows how many cases ARE going beyond 26 weeks, and have targets been set for what those numbers or proportions should be?   Or am I Marvin the Paranoid Android?

 

We remain in limbo until someone whose client is materially disadvantaged by the mental “starting point” of 26 weeks takes the case management decision to appeal.  We also have, at this stage, no real sense of which way the Court of Appeal will go on that.

 

They could take the strict law approach of 26 weeks being a creature of the imagination and 40 weeks being the starting point set down in actual law, or they could go the judicial discretion, case management powers and avoiding delay approach.

 

 

So, place your bets – will the first appeal be from the North, South, East or West of England, and will the Court of Appeal back the Judge or back the PLO?  The Court of Appeal haven’t shown much love for the PLO to date, but generally in slapping Judges who tried to case manage in accordance with its principles where the Court of Appeal felt that led to unfairness. So on the body of their decisions, my gut is that they should be slapping this 26 week starting point. But I would not put money on it going that way.

 

[I’ll emphasise again for clarity, I see nothing wrong with a Court looking at the individual case and determining that this case should, on the issues and facts, be resolved in 26 weeks, or 19 weeks, or 52 weeks that seems to me to be a perfectly proper judicial decision. 

 

My issue is with an unwritten principle that ‘all things being equal, a care case should finish within 26 weeks, and there would need to be reasons to go beyond that’ when that is not currently the law.  Or even that this is a perception which is being allowed to persist, there not being a clear statement to the contrary. ]

 

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Pindown revisited?

Posted on February 11, 2013 by suesspiciousminds

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

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“An unhelpful cocktail”

Posted on February 11, 2013 by suesspiciousminds

 

The interesting case of Re A (A Child) 2013.

 

The Court of Appeal dealt here with a case where some pretty appalling case management occurred with the appellants legal team, and whether a costs order should flow from that. They determined that in the absence of being able to show that costs had been incurred by the other parties for which they could be compensated, one could not make a wasted costs order purely as a punitive measure, no matter how awful the litigation conduct.

 

But it is worth looking at the litigation conduct, just because it is a dull day indeed when one isn’t interested when “I could a tale unfold whose lightest word would harrow up thy soul, freeze thy young blood, make thy two eyes like stars start from their spheres. Thy knotted and combined locks to part, and each particular hair to stand on end. Like quills upon the fretful porpentine…. “

 

 

Lo, the case is here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/43.html

 

 

The appeal related to a serious finding of fact hearing in care proceedings, a significant number of fractures on a very young baby, where the Judge found that these were caused non-accidentally.

 

Some time after those findings, the solicitors representing the parents became aware of the decision in London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam)    and legitimately considered the findings again in the light of that case, particularly whether there was an alternative medical explanation along the lines of vitamin D deficiency and rickets.

 

They sought leave to appeal from the trial judge, who refused.

 

They then applied to the Court of Appeal, primarily asking whether leave to instruct an expert to look at the case was required. The Court of Appeal considered the case, felt that a fresh expert assessment was desirable and granted that leave, then listing a Permission to Appeal hearing to take place after the expert assessment could be considered.

 

All of that is perfectly fine and proper.  

 

[I blogged about that appeal hearing HERE   https://suesspiciousminds.com/2012/11/22/more-on-vitamin-d-and-rickets/ 

 

In short, the Court of Appeal did not consider that the Judge at first instance was wrong, let alone plainly wrong, and that the medical evidence, including the fresh report came nowhere near substantiating a medical explanation for the fractures. ]

 

 

But this particular judgment comes about as a result of the Local Authority and Guardian feeling so aggrieved by the parents litigation conduct that they asked for a costs hearing.

 

This is why :-

 

 

  1. 6.       a) At the first, without notice, oral hearing the solicitors failed in their duty to provide the court with full and frank disclosure of all relevant material. In particular the bundle submitted did not include the original fact finding judgment or the section of the trial bundle that included the expert medical evidence;

b) The court was misled by an assertion in the grounds of appeal that the solicitors had had to prepare the case in a limited time period, whereas the reality was that they had the papers in the case for 18 weeks prior to filing their grounds of appeal;

c) After the September hearing the solicitors failed to disclose any relevant and necessary information to the Local Authority and the solicitors for the child until 16th October. The information withheld included a note of the 19th September hearing, the letter of instruction to Professor Nussey, Professor Nussey’s report (which had been received on 3rd October), the progress report sent by the parents’ solicitors to the Court of Appeal on 3rd October in accordance with my direction and any detail of the extensive supplementary questions and communications passing between the parents’ solicitors and Professor Nussey;

d) Professor Nussey was not instructed in a manner that would comply with the Family Procedure Rules 2010, Part 25 and the associated Practice Direction governing the instruction of experts. In particular, the Professor was not furnished with a copy of the 2010 fact finding judgment and/or the expert medical reports upon which the judge had relied. Instead the Professor was, for example, provided with the parents’ solicitors’ critique of that judgment setting out some 26 points which they said supported a benign medical explanation for the fractures that had been detected;

e) Once Professor Nussey’s report was available to the parents’ legal team, a clear view should have been taken that there was no longer any prospect of achieving permission to appeal. The decision to press on and mount arguments which this court ultimately found were unsustainable, went beyond the bounds of pursuing a hopeless case and amounted to an abuse of the court process.

  1. Ms Jo Delahunty QC, representing the child, supports the criticisms made by the Local Authority and seeks to stress the substantial degree to which, in her submission, the parents’ solicitors fell short of their duty to comply with the ordinary standards of transparency and co-operation required of those engaged in child protection proceedings in the Family Division. In particular, she points to the fact that the non-disclosure for nearly a month of information relating to the without notice hearing in September was not a result of inefficiency or incompetent administration, but arose from the deliberate assertion by the parents’ solicitors that the other parties were simply not entitled to any of this material unless and until permission to appeal is granted. She is also particularly critical of the way in which the expert was unilaterally lobbied by the parents’ legal team with, it is suggested, the aim of turning his initial adverse opinion into one which was more favourable to their case.
  1. In addition to the criticisms made of the litigation actions in the period between 19th September and 1st November, both counsel for the Local Authority and counsel for the child draw the court’s attention to the stance taken by the parents’ representatives at this hearing. Mr Prest drew attention to what he regarded was the startling difference between the world view in relation to these matters taken by the parents’ representatives and the reality of the approach required by the Family Justice System. In similar terms Ms Delahunty submitted that, in seeking to explain their behaviour and avoid adverse criticisms, counsel for the parents’ solicitors, Mr Michael Shrimpton, in his skeleton argument, was simply not speaking in the same language as the lawyers representing the Local Authority and the child. In particular Ms Delahunty points to the fact that, rather than offering an acceptance of poor case management and an apology to the court, Mr Shrimpton’s skeleton argument seeks to meet each of the matters raised head on and to question their validity. For example the case for the parents’ solicitors, who are a well known Birmingham firm of family specialists, questions the validity and legitimacy of FPR 2010 Part 25 insofar as it applies to Family Proceedings at first instance and asserts that, in any event, those provisions have absolutely no application to a pending appeal. They assert that the instruction of an expert in the course of an application for permission to appeal may be undertaken in total disregard of the Family Procedure Rules and the practice otherwise applicable to a family case.

 

 

 

Let me just flesh that out, because it may be so peculiar that it does not quite sink in – they obtained permission to appeal saying that they had had ‘limited time to prepare their case’ (when they had in fact had 18 weeks – some people, not me, but some other people, might actually go so far as to say that this is not a generous interpretation or disingenuous, or misleading, but a straight downright lie)

 

having obtained the permission of the Court of Appeal to instruct an expert, the parents solicitors then don’t give the expert the medical reports AND Judgment in the fact finding hearing, but instead a sprawling 26 point submission prepared by them as to why rickets is the cause of the injury, they don’t try to agree a letter of instruction or include any questions that the other sides would like asked, they don’t initially disclose the report of that expert to the other sides, they try to get the expert to change his mind after seeing his report, and when all of this is highlighted to them, they argue that the Family Proceedings Rules don’t apply to appeals in, erm family proceedings.

 

 

I also like this bit – the parents solicitors, in another case (oh my god) had gone off to get an overseas expert without leave of the court and then (once it was favourable to rely on it)

In January 2012 the parents’ solicitors acted for different parents in an application for permission to appeal which is now reported as Re McC (Care Proceedings: Fresh Evidence of Foreign Expert) [2012] EWCA Civ 165; [2012] 2 FLR 121. In that case, without the knowledge of, let alone the leave of, the Court of Appeal, the parents’ solicitors obtained a medical report from an American paediatrician and sought leave to adduce it as fresh evidence to support a proposed appeal. In his judgment refusing permission to adduce the evidence, with which the other two members of the court agreed, Thorpe LJ said:

 

“14. There are many reasons for refusing this application. It does not begin to satisfy the conditions identified in the well known case of Ladd v Marshall [1954] 1 WLR 1489. It is a report which is deeply flawed in the manner of its production. The respondents to these proceedings were given no notice of the intention to go elsewhere and to knock on another expert door. No permission was sought from this court either to instruct another expert or to release documents from the case to that expert and such documents as were released were not comprehensive and were apparently partisan.

15. I would have absolutely no hesitation in refusing this application but I do want to emphasise that there is, in my judgment, an obligation on an applicant for permission, or an appellant who has obtained permission, to seek leave from this court before instructing a fresh expert and releasing court papers to that expert for the purposes of the hearing of either an adjourned application for permission or an appeal.

16. I would also emphasise the importance of the Guidelines for the Instruction of Medical Experts from Overseas in Family Cases, endorsed by the President and published by the Family Justice Council last month. They must by extension apply to appellate proceedings although the guidelines are of course written specifically in contemplation of proceedings at first instance.”

 

  • Mr X submits that both he and his instructing solicitors were unclear as to the meaning of those passages from Thorpe LJ’s judgment in Re McC. He tells me that they did not understand whether or not it was incumbent upon them to apply for the leave of the Court of Appeal before seeking to instruct an expert to provide a report for use in support of their application for permission to appeal. In their minds, therefore, the purpose of the 19th September hearing was simply to seek the direction of the Court of Appeal on whether or not a full blown application for leave to instruct an expert, which Mr X tells me would have been on notice to the other parties, should be made. 
  • I confess that I am at a loss to understand that submission and ask, rhetorically, how Mr X and the Solicitors Firm could fail to understand the words “there is …. an obligation …. to seek leave from this court before instructing a fresh expert”. The account given in the Notice of Appeal to the effect that the Court of Appeal decision in Re McC, from which I have quoted, had simply ‘expressed some sympathy’ with the view that leave to instruct an expert was required and that the decision had not by that stage been reported is, on the facts, plainly unsustainable. 
  • The words of Lord Justice Thorpe are entirely plain and clear and, for the record, I regard his words as being entirely uncontroversial. The general approach, if not indeed the detailed requirements, of the Family Procedure Rules must, as Thorpe LJ holds, by extension apply to appellate proceedings.

 

So even though the firm of solicitors had been slapped by the Court of Appeal for getting a back door expert, and the Court of Appeal had given clear guidance on this exact point, they didn’t understand what it meant?

 

But all of that is okay, because the counsel representing them (although not a care lawyer, or indeed a family lawyer) is :-

 

 

a member of British Mensa and that he ‘by definition brings a Mensa-level intellect to the analysis of complex scientific and legal issues’

 

 

[If you are wondering, the quotation marks do indeed indicate that the Court of Appeal are quoting directly from counsel’s own skeleton argument. Yes, in a costs hearing in the Appeal Court, before Lord Justice McFarlane, this barrister put in writing that he was clever…. – not just in writing, but orally, and not just once, but “on a number of occasions”]

 

 

Oh. My. God.

 

If you aren’t cringing, writhing a tiny bit and dying a little bit inside on behalf of this man, you are a crueller person than even I am.

 

 

  1. Mr X’s approach to these proceedings readily supports the submissions that I have recorded from both of the opposing counsel to the effect that the case he presents comes from a totally different ‘world view’ and speaks in a ‘different language’ from that of the local authority and the child’s legal team. Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings. The local authority seeks to hold the parents’ solicitors responsible for this on the basis that they selected the particular counsel for these hearings. That submission is, in my view, not sustainable when it is clear, as it is, that the argument that became the focus of the application and was then sustained on to the second hearing was crafted by counsel and not by the solicitors. Mr X told the court that, following receipt of Professor Nussey’s report, the solicitors sought his advice on the future viability of the application for permission and that as a result of that advice the case continued. An indication of counsel’s faith in his clients’ case at the second hearing was the very surprising information, as reported to me during the hearing, that Mr X had approach Ms Delahunty outside court to enquire if the children’s guardian was going to support the application for permission to appeal.
  1. My clear conclusion is that the manner in which the application for permission was pursued, after receipt of Professor Nussey’s report had removed from it any true validity, arose almost entirely from the wholly over optimistic judgment of counsel and not from any improper or unreasonable act or omission of the solicitors. By the end of the present hearing this understanding of events seemed to be shared by Mr Prest for the local authority when, after all of the submissions were complete, he made an application to include Mr X in the wasted costs application. I refused that application on the basis that the case had by then been heard and concluded on the basis that Mr X was not in the frame and that it would by that stage be oppressive to alter the focus of the application to include him.

 

 

Oh, I want to look at that again, let’s just do this one bit

 

Mr X is a brave and confident advocate who gives the strong impression of believing the cause for which he advocates. These various factors, high intellect, a lack of understanding of the justification for the approach taken in family proceedings and the brave championing of a cause, are, in my view, the unhelpful cocktail of elements which have come together in counsel’s presentation of the parents’ case in these proceedings

 

 

He was SO lucky to escape without a cost order.

 

 

It must have been fairly close as to whether the costs of the appeal hearing itself, were incurred as a result of advice which could not be sustained on the evidence.  It was in part, I think, the fact that it was counsel’s clear advice and driving of the process that absolved the solicitors from blame in not abandoning their appeal once the expert they had instructed (and attempted to nobble) hadn’t supported them.  If you can’t persuade an expert who you have blatantly tried to manipulate into supporting your case to support you, you really don’t  have a winnable case and that would be the time to abandon the appeal. They didn’t. They pressed on.  One can see from the previous blog and judgment just how much work went into that appeal hearing, particularly from leading counsel for the child, Ms Delahunty.

 

 

Of course, I could be wrong – perhaps the Mensa level intellect which counsel brought to bear in the case foresaw that as the Guardian and LA hadn’t included him in the wasted costs application, he could save his solicitors from a wasted costs order that was otherwise heading their way by convincing the Court that all of the faults were of his making. Perhaps he was nobly falling on his sword and was in reality blameless.

 

I would politely suggest that any counsel who are card-carrying members of Mensa to eschew the desire to flaunt this in front of the Court of Appeal in any future hearings.

 

 

[I’m sure 95% of Mensa members are witty, suave, urbane, good company, romantically successful, essentially happy, well-balanced, productive, helpful and fascinating, and that I have just been very  unlucky in meeting the small proportion who spoil it for them….   I did also remove an “a bit like the American Express advert – it’s four letters too long”  joke from this piece, but I’m sure you can work it out for yourselves]

 

 

If you are interested in instructing an overseas expert in care proceedings – perhaps you like paperwork, perhaps you enjoy the game of Russian Roulette that is incurring costs that the LSC might or might not underwrite, perhaps you just enjoy having telephone calls at 4.00am, there’s some guidance about how to do it, here :-

http://www.judiciary.gov.uk/JCO%2FDocuments%2FFJC%2Ffjc_guidelines_for_overseas_experts_Dec2011.pdf

 

 

 

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“A pair of star-cross’d lovers…”

Posted on February 5, 2013 by suesspiciousminds

 

Written agreements, love and difficult choices in care proceedings.

 

 This written agreement is prepared and entered into by the parents of Rose Smellsweet Capulet

 

 

It is accepted that the father of Rose,  Romeo Montague, will live apart from Rose and the mother, Juliet Capulet, whilst assessments are undertaken of him.

 

It is accepted that there is a need to undertake such assessments based on these three factors :-

 

(i)                 The age of Juliet when the relationship began, she being thirteen(nearly fourteen) at the time

(ii)                The conflict and tension between the paternal and maternal family

(iii)             The incident where Romeo is alleged to have stabbed Juliet’s cousin Tybalt

(iv)             The incident where it is alleged that both parents planned to commit suicide

 

 

The parents agree :-

 

 

  1. That Romeo will not visit the home of Juliet.
  2. That he will not visit the immediate boundaries of Juliet’s home (this having been added due to incidents where he was singing up at her balcony)
  3. That all contact between Romeo and Rose will be supervised by the Local Authority
  4. That Romeo and Juliet will not have communication face to face, or by letter, text message, email, instant messaging, , Lutebook or through intermediaries such as Nurse or Benvolio.
  5. That this written agreement will be reviewed once Dr Falstaff’s risk assessment has been received.

 

 

 

 

Ridiculous, of course, but some serious points emerge.

 

 

Within care proceedings, it is often the case that one parent is asked to separate, either temporarily or permanently , from another parent who they love, as a result of a risk posed by that parent to the safety of a child.

 

It is hoped that once assessments are in, or factual allegations determined, that the parents will be able to resume that relationship, with either there being no risk or the risk being determined as one which can be safely managed or reduced with specialist help.  But that doesn’t always happen.

 

Sometimes the care proceedings and decisions about the future turn on whether a parent can stick to their word and stay away from the risky partner. 

[I am trying hard within this piece not to fall into the stereotypical pitfall of implying that it is always safe mums and risky dads, although that is the more common category we see, I have had significant numbers of safe dads and risky mums too, and of course risky dads and risky mums in the same case]

 

 

There are really only three options where one parent is found to be a risk (and where the risk is determined to be substantial):-

 

  1. Let mum and dad look after the child together and take that risk that the child will be harmed
  2. Remove the child from harm and the mum and dad can live together but without the baby
  3. Ask the parents to live apart and for the child to live with the safe parent and manage the contact with the risky parent

 

 

Frankly, none of these are ideal, and the third one is the compromise position that is often reached, not as the best, but the least worst of the three.

 

 

Now, onto the points the fake written agreement is trying to touch on by using Romeo and Juliet as the particular example.

 

 

I think most people in the Western world would agree that Romeo and Juliet is one of our touchstones of romantic love and what it means to be in love. It means intensity, it means passion, it means one person in the entire world who is the one for you.   It means not being kept apart, no matter how much external forces try to split you up. It means being bound together being unable to live if not with the person you love.  It may even mean that if the world says you can’t be together you must keep your love a secret.

 The way the world sees and sells love, it is that consuming passion, the fire that burns within us.

 

All of which are really bad for option 3 above.

 

How realistic is it, really, to ask two people who are genuinely in love to be apart for the sake of a child when neither of them really wants to end the relationship? No matter what someone external might see as inherent crappiness of their relationship or how one partner “could do so much better” the truth of the matter is that for THOSE people, that love is real and vivid and powerful and emotional and painful as it is for any one of us who has ever been in love.

 

 

The point of using Romeo and Juliet is to remind ourselves that these parents in any particular case that we are looking at,  are in love, bound up with another person, with all that this means. It is easy enough to look at it purely from  the outside and say “of course he should leave this woman, she is awful to him and so dangerous to the child, it’s a no-brainer”   but you have to remind yourself that love and logic are strange bedfellows, and that for these people, their feelings and emotions and pain are just the same as yours would be, if you found yourself in that awful dilemma.

 

It is very hard to countenance, if you try to put yourself in these parents shoes for a moment, ending that relationship because someone else tells you that you should.  It is hard to end a relationship when you really want to, harder still when the other person ends it and you weren’t at that same place.  It is almost inconceivable to think of ending a relationship when the flames in both your hearts haven’t gone out.

 

That’s not to say that it is the wrong thing to do – looking at the three options above, the third is the least damaging for the child, who gets to live safely with one parent.

 

Just that really, what we ask of parents in this situation, whether we be social workers, experts, lawyers, family members or even the Courts, is HARD.  It might actually be the hardest thing that the parent will ever have to do in their life, and for that reason, it is not surprising that often these imposed separations don’t work out.

 

They crumble, or sometimes the risky parent (who after all has lost their lover but not gained a child) applies pressure for the relationship to continue, or attempts are made to keep the relationship going in secret. 

 

The temptation to introduce an option 4 to that unappealing list

 

4. The child lives with the safe parent, and so far as social services and the court are concerned, the relationship is over, but we keep it going and don’t get caught

 

Must be a massive one.

 

 

[Actually, I think the word “clandestine” is probably used more in care proceedings than any other walk of life, for exactly that reason.  ]

 

The other, slightly cheap shot, reason for using Romeo and Juliet to illustrate this piece, is that our greatest imagery of love and passion, our Platonic ideal of it if you like,  is involving a young man pursuing a 13 year old girl….

 

 

[There’s probably a whole other piece on looking at the examples people would give of “famous or inspiring lovers”    – Romeo and Juliet,  Anthony and Cleopatra, Richard Burton and Elizabeth Taylor, Heathcliffe and Cathy, Scarlett O’Hara and Rhett Butler, whoever the heck the couple are in Les Miserables,  Peter Venkman and Dana Barratt, Jane Eyre and Mr Rochester,  Lancelot and Guinevere, Juliet Roberts and Richard Gere in Pretty Woman, Elizabeth Bennett and Mr Darcy….  They are all pretty dysfunctional couples and a heck of a lot of hearts get broken or even stopped along the way]

 

 

i bet this ends well 

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Is there a meaningful right to silence in care cases?

Posted on February 4, 2013 by suesspiciousminds

We have all seen the sequence on television, the police arrest their suspect, snap the cuffs on and lead them away (probably pushing down on their head as they get them into the panda car) saying  “You do not have to say anything, but it may harm your defence if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence”

And the right to silence is enshrined in English law in the Police and Criminal Evidence Act 1984.  A person may be interviewed by the police and say nothing, or say “no comment” in relation to every matter put to them.

 

The jury would be directed that no inferences should be drawn about that, unless there is something that they later rely on and there was no good reason for them not to have said it in interview.

So, how do we square that with care proceedings, where the onus is on a parent to be open and honest, and they have to meet with professionals and talk to experts and have to give evidence, often in advance of the criminal trial?

Well, the primary protection is (or was intended to be)

 

Children Act 1989, section 98(1):

“In any proceedings in which a court is hearing an application for an order under

Part IV or V, no person shall be excused from—

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving

evidence,

on the ground that doing so might incriminate him or his spouse of an offence.”

 

 

And

 

(2)A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse [or civil partner] in proceedings for an offence other than perjury.

 

 

 

So, ostensibly, a parent in care proceedings can give their evidence, either in a statement, or in oral evidence, knowing that it cannot be used against them  or their spouse for any offence other than perjury. 

[Note that there is no protection of it being used in prosecutions against your boyfriend or girlfriend, or cohabitee, or the father of your children, if you are not married to them]

 

There is no right to ‘plead the Fifth’ and “refuse to answer questions on the grounds that it may incriminate me”

 

The Court of Appeal clarified this in Re Y and K (Children) 2003

 

35. We are glad, therefore, to have the opportunity today of clarifying the situation. Parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

 

 

And then in Re O (Care Proceedings: Evidence) [2004] 1 FLR 161 the High Court ruled that where a parent was giving evidence and flatly refused to answer a particular question, the Court would be entitled to, and usually should, draw inferences that the allegations being put are true.

 

 

As a matter of public policy, it is vitally important that parents give evidence in care proceedings and set out their version of events, in order for the Court to best arrive at both the truth of disputed matters and a determination of what is in the child’s interests in the future. Candour is an extremely important feature of care proceedings, particularly where an allegation of physical abuse is being investigated, and one often hears that an admission, even at a late stage would be more desirable than an adverse finding being made after denials.   That is why there is no ‘right to silence’ imported into the Children Act 1989, but that does not mean that this should impinge on your right to silence in the criminal proceedings.

 

That places the parent in care proceedings, and most particularly in care proceedings involving a serious allegation which is also the subject of a police investigation, in a difficult situation.

 

They cannot refuse to give evidence, nor can they during their evidence, refuse to answer questions, and if they attempt to do so, the door is wide open for the Judge to make adverse findings against them.

 

Their protection then, such as it is, is the provision of s98(2) that in giving their account, this will not be used against them for any other proceedings other than perjury.

 

But how true is that, in reality?  

 

 

There were a swathe of cases in the mid 1990’s  about which statements were covered by s98(2) and which were not, and earlier decisions that any admissions or statements made to a social worker during the course of the proceedings WERE COVERED by s98(2) were then overruled by the Court of Appeal in Re G (Social Worker Disclosure) [1996] 1 FLR 276  who distinguished between admissions made to a Guardian (which WOULD BE covered by s98(2)  since the Guardian’s was a creature of the proceedings only) and to a social worker (who had a role and function outside of the court proceedings).

 

So, if you, as a parent are going to confess all, but don’t want to waive your right to silence in the criminal trial, it is best to do it to a Guardian and not to a social worker.  (Of course, the bigger problem for you will be getting any actual face-time with a Guardian to make your confession, since these days you’ll be lucky if they ever speak to you after the very first hearing)

 

 

The Courts have also ruled that statements or remarks you make to an expert during an assessment ARE covered by s98(2)  Re AB (Care Proceedings: Disclosure of Medical Evidence to the Police) [2003] 1LR 161

 

 

 

But in practice, what do the provisions of s98(2) mean? They are after all,  your bulwark against losing your right to silence in the criminal proceedings by virtue of the State having decided that transparency and candour in care proceedings is vital.

 

 

In Re EC (Disclosure of Material) [1996] 2 FLR 725  the Court held that the police could apply for, and be provided with, transcripts of a parents evidence, which would include their admissions, and that the police could use these to shape their investigation, including framing their questions for interview.

 

The transcript could not be produced as evidence in criminal proceedings for anything other than perjury, but the fact that their use for this purpose has become increasingly common  (you will often see the police making applications for disclosure following a finding of fact hearing) is troubling for s98(2)

 

 

In the course of writing this article, I came across a very splendid article on a similar topic, written by Sarah Cooper, a barrister at Thomas More Chambers. It is a good read, and it is only my chance to publicise it further that led me to not abandon my own post halfway through, Ms Cooper having done it so well in the first place.

 

http://www.familylawweek.co.uk/site.aspx?i=ed60575 

 

 

Ms Cooper makes the excellent point, which I would not in all likelihood have found, but which is incredibly important, that where a person in a criminal trial makes an inconsistent statement

 

“The Criminal Justice Act 2003 s119  provides that a previous, inconsistent statement by a witness which is put to him in criminal proceedings is now admissible as evidence of any matter stated of which oral evidence by him would be admissible.”

 

Raising the spectre of at least a debate or legal argument in the criminal proceedings as to whether the document the police have got their hands on through the care proceedings is admissable, to refute an inconsistent statement made by the defendant.   So whilst the admission made in Court may not be evidence ITSELF as to what it says, it may end up being imported as evidence that a statement made by the defendant to the contrary is untrue or at least in doubt.   As Ms Cooper suggests   “section 98(2) is a very leaky sieve indeed”

 

 

I have to say, that I don’t like any of the law on this that sprang up in the mid nineties.   I think that the Court tried to square a public interest in parents being free to make admissions in care proceedings whilst retaining their right to silence as against a public interest in the prosecution and detection of crime, and for me, they got the balance wrong.  I’m sure they genuinely felt that they had been able to do both, but it was a classic slippery slope. Once the police got a foot inside the door of the family court, it was only going to erode the intention of s98(2) over time to a point where it is now nearly meaningless.

 

For me there is a huge  and overriding public policy interest in openness and where a person makes an admission, that being recognised as a good thing, rather than a person running the risk that candour in care proceedings might well be punished in criminal proceedings.

 

I would like to see the law reset to s98(2)’s original intent, that a person could give their evidence freely within care proceedings without fear of external consequences, and to be able to be honest and open with social workers, guardians and the Court.

 

 [I think that the fact that the cases that pushed the door ajar pre-dated the Human Rights Act and particularly article 6, and particularly the inconsistent statement provision of the Criminal Justice Act 2003 means that the time might be right for them to be challenged]

 

 

Of course, the negative side of such a reset is that the police would no longer have access to this potentially valuable material collected within care proceedings, and that valuable police time might be spent chasing a red herring, or spending hours in trying to prove something which has already been admitted. 

 

I think it would be legitimate, where it is known that the police have charged X with an offence, for them to be formally notified, with a form of wording agreed by all parties and approved by the Judge, that the Court in the care proceedings determined that X DID NOT do this thing. 

 

That would avoid or reduce the risk that someone would be wrongly charged or prosecuted for an offence that has already been scrutinized in detail by the family Court.

 

 

 

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“A Judge too far”

Posted on February 4, 2013 by suesspiciousminds

 

 

A quick discussion on the Court of Appeal decision in Re J-L (Children) 2012

 

 

 

The Court of Appeal sat in a very short hearing to determine a case where a Judge, when dealing with a fact-finding hearing in care proceedings, made a particular set of findings that deviated from the schedule of proposed findings drawn up by the Local Authority and found that the children had witnessed inappropriate sexual behaviour whilst in the care of their mother.

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed111465

 

 

 

I blogged about this one prior to the full transcript being up, here:-

 

https://suesspiciousminds.com/2012/12/05/i-still-havent-found-what-im-looking-for-or-going-off-menu/  

 

 

based on the family law week summary that suggested that the Court of Appeal had ruled that it was not open to a Judge to make findings that were not on the menu / schedule of findings placed before him.

 

Reading the full transcript, I don’t think the Court of Appeal go that far at all. There is not, in my view, such a principle established by this case.

 

 In fact, although it is a short one page judgment, I can’t find a single sentence that hints at the Court of Appeal determining whether or not a Judge can go “off-menu”  – it simply didn’t fall to be determined as a result of matters I set out below.   

 

 [What they do say is that on the EVIDENCE before the Court, the particular finding made wasn’t one open to the Judge to find. 

 

It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property

 

[It being fairly pertinent that there was no material or allegation or disclosure before the Court that the children had witnessed this sort of thing. There is nothing unusual about the Court of Appeal saying that a Judge couldn’t make findings on the evidence before them, nothing new to see there.  But wait around, because the next bit is good]

 

 

 

By the time of the hearing, each of the parties had reached a decision that the finding the Judge made in relation to those matters was a step too far, and that it would be appropriate for that particular finding to be struck out. Indeed, the Local Authority had been in liaison with the other parties to try to formulate some wording which would be acceptable to all.

 

The Court of Appeal were rightly pretty irascible about  the need for an Appeal hearing at all, given that all parties were of the view that the findings needed to be adjusted and the offending paragraphs struck out

 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father’s legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.

 

 

 

I think it would be a risk, in any future appeal where some of the parties are seeking to avoid the need for an appeal by reaching a consensus to be the one lone wolf not engaging in that process.   (Of course, it is different if the party has a different view to the attempted consensus and there is a chasm which can’t be bridged, even following attempts, but here, it seems as though father’s team just sat out those discussions)

 

 

The Court of Appeal don’t really address what would actually happen in this situation on the ground.  There’s almost an implication that an appeal hearing isn’t needed if all of the parties could agree a form of wording on the finding in dispute.

Now, imagine that the Judge makes a string of findings, lets say 8 in all, and the parties then write to her after the Judgment and say  “None of us agree with you on finding 7, and we think you should say X”

 

 

There’s a bit of a difference in the parties doing that of their own accord, and the Court of Appeal having approved that. In the latter case, the Judge has been told that finding 7 won’t wash, and needs to be sorted out.

 

In the former, I can think of many Judges who would say “Well, thank you for your kind interest in my judgment, and contribution to it after the event”,  and then in tones similar to Miranda Richardson in Blackadder, add  “Who’s Judge?”

 

[If the Court of Appeal instead mean that the parties in this sort of situation in the future could have lodged their revised wording to finding 7 and the Court of Appeal could have just agreed it without a hearing, that also seems iffy to me.  A Judge wasn’t necessarily wrong, let alone plainly wrong, just because all four advocates think they were, and a determination as to whether they were ought to be for the Appeal Court, not just to rubber stamp an agreeement between the parties as to what the judgment OUGHT to have said. But I am, perhaps, old-fashioned in that regard. ]

 

Who's Queen?

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“Biological parent versus legal parents – OR Judge Fudge is far too busy being delicious”

Posted on February 1, 2013 by suesspiciousminds

 

 

A discussion of the High Court decision in Re S v D &E 2013, in which the High Court determined that a man who had donated sperm which led to the birth of a child could make an application under the Children Act 1989, although leave would be required.   The case involved two separate families where the issues were similar (although of course the precise facts were different, and were bundled up together)  – which becomes very important later on.

 

 As promised, LO !

http://www.bailii.org/ew/cases/EWHC/Fam/2013/134.html

 

 

The issue really arises as a result of the provisions within the Human Fertilisation and Embryology Act 2008, to the effect that in this setting, where a man provides gametes in order to bring about a pregnancy, but that the biological mother of the child is in a civil partnership, the two women will be legal parents of the child and the donor will not be a legal parent.

 

  1. The provisions of the 2008 Act relevant to these applications are ss.42(1), 45(1) and 48(1), (2) and (5). S.42(1) provides

“If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership, then … the other party to the civil partnership is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

S.45(1) provides, in so far as relevant to this application:

“Where a woman is treated by virtue of section 42 … as a parent of the child, no man is to be treated as the father of the child.”

S.48, so far as relevant to this case, provides:

“(1) Where by virtue of section … 42 … a person is to be treated as the … parent of a child, that person is to be treated in law as the … parent … of the child for all purposes.

(2) Where, by virtue of section … 45 … a person is not to be treated as a parent of the child, that person is to be treated in law as not being a parent of the child for any purpose.

….

(5) Where any of subsections (1) to (4) has effect, references to any relationship between two people in any enactment, deed or other instrument or document (whenever passed or made) are to be read accordingly.”

 

 

 

Therefore in this case, the donor is “not to be treated as the father of the child” and “is to be treated in law as not being a parent of the child for any purpose”

 

 

That prevents the donor from the ability to make an application for contact or residence as of right, as he is not a parent.

 

The more difficult question was whether the donor had the right to make an application to Court under s10(9) of the Children Act 1989 for LEAVE to make an application, or whether the provisions of the Human Fertilisation and Embryology Act 2008 were in effect a bar to such leave being given, as he is “not to be treated in law as being a parent of the child for any purpose”

 

 

The parents argument was the HFAE 2008 meant that the donor was not a parent of the child for any purpose, and that meant there was no connection to the child and so any application under s10(9) was doomed to failure, connection to the child being a key component.

 

 

 

  1. It is a central feature of the argument advanced by Miss Russell on behalf of X and Y, and adopted and developed by Miss Fottrell on behalf of D and E, that the policy underpinning the reforms implemented in the 2008 Act is a material consideration for this court in determining the applications for leave under s.10(9).
  1. It is manifestly clear that, by passing the 2008 Act, Parliament changed the law on donation to recognise lesbian parents as joint legal parents. Those provisions not only confer parenthood but also expressly eliminate the legal status of the man who is the biological father in such circumstances. Miss Russell submits that the provision that no man should be treated as the father ‘for any purpose’ affects the interpretation of every other legal enactment and private document and should be regarded as a fundamental and overriding provision. Miss Russell submits that Parliament could not have been more categorical about its intent to shelter recipient parents from any possible parental claim from a “donor”.
  1. The respondents contend that, by providing that a man in the position of S and T is ‘not to be treated as the father for any purpose’, Parliament intended to protect families from precisely the type of conduct being demonstrated by the applicants in this case, which Miss Russell characterises as an “invasion of privacy and infringement of parental responsibility”. She argues that T’s application amounts to seeking a paternal role on the presumption that Z will benefit from the building of such a relationship with his biological father in addition to the relationship he has with his two existing legal parents. Miss Russell submits that the amendments to the law introduced by the 2008 Act represent a significant shift of policy away from the presumption that a child’s welfare is enhanced by the involvement of a father, towards an acknowledgment that alternative family forms without fathers are sufficient to meet a child’s needs.
  1. Miss Russell submits that the effect of requiring “donors” in these circumstances to apply for leave is significant. Prior to the implementation of the 2008 Act, an applicant in the position of S and T was entitled to apply for contact as of right. Previous cases have been heard under a different legal framework in which the applicant man was the legal father and the welfare of the child was, from the outset, the court’s paramount consideration. In contrast, under the present application, the applicants are not legally the fathers of the children and welfare is not the paramount consideration of the court and the court is considering the section 10(9) criteria in the context of, and in conjunction with, the provisions of, and policy underpinning, the 2008 Act. Granting an applicant in these circumstances leave to apply for orders under s.8 would, she argues, seriously undermine that policy.

 

 

 

The donor’s argument was that s10(9) applied and he could make an application for leave, and that it would be for the Court to determine whether his application for leave should be granted, applying all of the usual tests.

 

 

In response to these submissions, Miss King deployed an extensive range of arguments, but her central submission can be simply summarised. She accepts that the effect of the reforms implemented by ss 45(1) and 48(2) of the 2008 Act was to remove the status of legal parent from a man who provides sperm for the artificial insemination of a woman in a civil partnership, but submits that this does not eradicate his status as a genetic parent who may, depending on the facts and whether or not he satisfies the criteria under s.10(9), be allowed by the court to apply for an order under s.8 of the Children Act in order to play a role in the life of the child. Although parental responsibility is vested exclusively in the mothers of the children, Miss King submits, relying on dicta of McFarlane LJ in Re W (Children) [2012] EWCA Civ 999, that with parental responsibility comes both authority and duty and argues that, as the legal parents to Z, part of the role assumed by X and Y involves making responsible decisions which meet the best interests of their child including permitting contact with his biological father. If they are unable to agree to do so, then, submits Miss King, the court must intervene on behalf of the child

 

  1. Miss King submits that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. In some circumstances, a legal parent may not have a day to day relationship with a child whereas a person with a significant social or psychological relationship may be a stable and constant presence whilst lacking the status of a legal parent. Miss King submits that to contend for the notion that a biological father has an inherently higher test to meet than would others who are not legal parents to the subject child is to ignore the fact that leave to apply is only ever required when the applicant is not the legal parent. No person is absolutely excluded from seeking redress, although, save in certain defined circumstances, an application for redress cannot be made without the court’s leave. Miss King reminds me that this is the position faced by biological fathers without parental responsibility in other circumstances(see Re H (illegitimate Children: Father: Parental Rights) (No 2) [1991] 1 FLR 214), and also by step-parents (Re H (Shared Residence: Parental responsibility)[1995] 2 FLR 883 and Re A (Joint residence/Parental responsibility)[2008] 2 FLR 1593) and same-sex partners who have no biological relationship with the subject child but are playing the role of the parent (G v F (Contact and Shared Residence: Application for Leave [1998] 2 FLR 799). Miss King submits that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently.
  1. Miss King submits that, had Parliament intended that a person in the position of the respondents in this case should be entirely stripped of legal remedies, it would have expressly provided that a progenitor in these circumstances would be disqualified even from seeking the court’s leave. In the absence of such an express provision, the policy considerations advanced on behalf of the respondents should not be used to trump or outweigh the statutory criteria for granting leave under s.10(9).
  1. In developing Miss King’s arguments on this point, Miss Reardon submits that the terms of s.42 of the 2008 Act do not limit a child’s parentage to the two mothers in anything but the strictest legal sense. Therefore, she argues, the Act cannot operate as a blanket ban on any application by a biological father. The fact that the terms of the 2008 Act require that a man in a position of S and T ‘is to be treated in law as not being a parent of the child for any purpose’ is a very different thing from excluding him from making an application for leave to apply for an order under s. 8 of the Children Act. In fact, she submits, biological parents who are not legal parents continue to be treated as the parents of their children for a number of purposes, for example in order to obtain information about a genetically-related medical condition, or to provide the child with an understanding of his biological heritage and identity.

 

 

 

The Court took pains to point out a number of times in the judgment that in dealing with cases where there were two legal parents and two biological ones and not necessarily a complete overlap between those two sets of “parents”  most of the decisions were likely to turn on the facts specific to that case.

 

 

This was also the case advanced by the donors  (there being two cases of similar type ‘bundled up’ and heard together)

 

Ultimately, the cases advanced on behalf of the applicants focus on the facts. Central to the case advanced on behalf of the applicants is the argument that each case is fact specific. They submit that the policy considerations underpinning the 2008 Act do not entitle or oblige the court to refuse an application for leave in every case. In some cases, it will be appropriate to grant a genetic or psychological parent leave to apply for contact, in others not. In support of this submission, Miss King relies on the decision of the Court of Appeal in A v B and C (Lesbian Co-Parents: Role of Father) [2012] EWCA Civ 285 [2012] 2 FLR 607. In that case, both Thorpe LJ and Black LJ (at paragraphs 23 and 39 respectively) stressed that decisions in disputes between two female parents and a male parent are “so fact specific’. As a result, Black LJ concluded that ‘this is an area of law in which generalise guidance is not possible’. Miss King acknowledges that A v B and C was a case in which the biological father was entitled to apply for contact as of right and the court was thus applying the paramountcy principle. She submits, however, that the observations of the Court of Appeal support the argument that the court should adopt a fact-specific approach to the application for leave in this case, rather than attaching any significant weight to the policy considerations identified by the respondents.

 

 

And that it would therefore be a consideration by the Court of the facts in the particular case as to whether a donor should be granted leave under s10(9) rather than interpreting that the policy underpinning the provisions of the HFEA 2008 meant that as a matter of public policy such a s10(9) application for leave should be refused.

 

 

The Court, as you will see from the conclusion of the judgment, was in agreement with the applicant, that it was a case specific decision on the facts as to whether s10(9) leave should be granted, and went on to do so.

 

 

  1. 112.                     Discussion
  1. I accept the submission put forward on behalf of the respondents to these applications that the reforms passed by the Human Fertilisation Embryology Act 2008, and the policy underpinning those reforms, are material considerations for this court in determining this application for leave under section 10 of the Children Act 1989. The effect of sections 42(1), 45(1) and 48 (2) of the 2008 Act is that S and T are not to be treated in law as the parents of, respectively, G and Z for any purpose. I endorse the submissions that the policy underpinning these reforms is an acknowledgement that alternative family forms without fathers are sufficient to meet a child’s need. It is now established beyond doubt that the relationship between a same-sex couple constitutes ‘family life’ for the purposes of article 8: see Schalk and Kopf v Austria[2010] ECHR 995. Thus, D, E, F and G have a family life together, as do X, Y and Z, that is entitled to respect under article 8. Thousands of children in this country are being brought up happily and successfully by same-sex couples. ‘As the usages of society alter, the law must adapt itself to the various situations of mankind’ (per Lord Mansfield in Barwell v Brooks (1784) 3 Doug. 371).
  1. To my mind, the policy underpinning sections 42(1), 45(1) and 48(2) of the 2008 Act is simply to put lesbian couples and their children in exactly the same legal position as other types of parent and children. This is in my judgment the clear intention of Parliament. I do not see any ambiguity in the wording of the Act which, under the rule in Pepper (Inspector of Taxes) v Hart [1993] AC593, is required to justify the court considering reports of recordings in Parliament as an aid to statutory interpretation.
  1. Any person who seeks a s.8 order in respect of that child against the wishes of such parents must obtain the leave of the court which will consider all relevant matters including the factors identified in s.10(9) as explained by Black LJ in Re B (Paternal Grandmother: Joinder as Party). As part of that analysis, the court will consider the rights of legal parents to family life including the right to make decisions about their children. Those rights are widely recognised both as a long standing principle of English law and under article 8. In this regard, the position of a lesbian couple who have been granted the status of legal parents by the 2008 Act is exactly the same as any other legal parent. Having taken those rights into account, however, it is still open to the court, after considering all relevant factors, to grant leave to other persons to apply for section 8 orders. In this regard, the position of biological fathers who have been deprived of the status of legal parent by the 2008 Act is the same as any other person.
  1. As a matter of law, Miss Russell and Miss Fottrell are right to describe S and T as strangers to G and Z. But in another sense, they are not strangers. As a result of choices made by the respondents, both S and T had regular and frequent contact with G and Z respectively. D and E chose S, an old friend of D’s, who lived 100 yards or so away, to provide sperm to enable them to conceive a child. They involved him in preparations before the birth. They invited him to see the new baby, F, immediately after birth and thereafter on a regular basis. When they decided to try for another child, they asked him to provide sperm again. They wanted their second child to have the identical genetic background to their first. Again, they involved S in the preparations before the birth and allowed him regular and frequent contact thereafter. I acknowledge that D and E say that, in some respects, they were acting under a degree of pressure when they involved S in those preparations and arranged the regular and frequent contact with the children, but the fact remains that, for whatever reason, they did involve him in this preparation and did allow him contact. Equally, D and E challenge the quality of the contact S had with F and, in particular, G, saying that, when he visited the home, it was mainly to pay a social call on his old friend D. S does not accept their evidence on these points. Irrespective of the truth about these issues, which can only be resolved after a substantive fact-finding hearing, it is clear, on either version and irrespective of the legal position, that S was not as a matter of fact a stranger to the children. Furthermore, although again no finding on the point can be made without a substantive hearing, it is in my judgment arguable that the relationship that D and E allowed S to develop with the children was linked in some way to their biological relationship.
  1. Equally, X and Y, having met T through D, E, and S, and being fully aware of the degree of involvement S had in F’s life, selected T to provide sperm to enable them to conceive a child, and subsequently allowed T frequent and regular contact on over 50 occasions in the first 18 months of Z’s life. Again, X and Y assert that they were to some extent put under pressure by T to allow that level of contact. They too challenge the quality of the contact. Again, T does not accept their arguments on these points. Again, irrespective of the truth of those issues, which can only be resolved by a substantive fact-finding hearing, and irrespective of the legal position, T is not a stranger to Z. Further, it is to my mind again arguable that the relationship that X and Y allowed T develop with Z was linked in some way to their biological relationship. In their case, it is also significant that they expressly wanted T to be a role model for Z. They could, of course, have chosen any of their relations or other friends to be a role model, but the fact is that they chose T, the biological father of their child, for that purpose. Although no finding can be made without a substantive hearing, it is at least arguable that their choice of T as a role model for Z was again linked to their biological relationship.
  1. By choosing friends, S and T, to provide sperm to enable them to conceive children, and by allowing them to have regular and frequent contact and to place some role (albeit disputed) in the lives of their families, D and E in one case, and X and Y in the other, were exercising their parental responsibility to facilitate some sort of relationship between their children and their biological fathers. This illustrates the true effect of the reforms implemented in sections 42 (1), 45 (1) and 48 (2) of the 2008 Act. D and E, and X and Y, have been granted full and inclusive parental responsibility for G and Z, to the exclusion of the biological fathers. They consciously exercised that responsibility by allowing S and T regular contact with the children. The 2008 Act empowered them to take this course. It did not deny them the right to do so. No doubt there will be some lesbian couples who, after having children by artificial insemination, not only allowed the biological fathers to have contact with the children but also encouraged them to play a full parental role and be recognised as fathers. The 2008 Act denies the biological father the status of legal parent, but it does not prevent the lesbian couple, in whom legal parenthood is vested, from encouraging or enabling the biological father to become a psychological parent. On the contrary, it empowers the lesbian couple to take that course as the persons in whom parental responsibility is vested.
  1. Accordingly, I reject the respondents’ submissions that granting leave to the applicants would have the effect of frustrating the legislative intention behind the 2008 reforms. I accept Miss King’s submissions that the potential importance of genetic and psychological parenthood is not automatically extinguished by the removal of the status of legal parenthood, and that social and psychological relationships amounting to parenthood can and often do co-exist with legal parenthood. She is correct that no other person is absolutely excluded from seeking redress and I accept her submission that biological fathers who are deprived of legal parenthood by the 2008 Act should be treated no differently. Had Parliament intended that a person in a position of the applicants in this case should be entirely stripped of legal remedies, it would have expressly provided that a person in the position of S and T in these circumstances would be disqualified even from seeking the court’s leave.
  1. Furthermore, whilst following the decision in Anayo v Germany, that a biological kinship between a natural parent and child alone will be insufficient to attract the protection of article 8 of ECHR, it is plainly arguable that the relationships which D and E allowed S to establish with G, and which X and Y allowed T to establish with Z, amount to ‘family life’, or alternatively fall within the scope of ‘private life’, so that a refusal to allow the applicants at least permission to apply for orders under section 8 of the Children Act would amount to a breach of their rights under article 6 and 8.
  1. I further accept Miss King’s submission, supported by Miss Reardon, that this court must adopt a fact-specific approach to these applications for leave, by a careful scrutiny and application of the factors under section 10(9), and considering the merits of the proposed applications as required by case law. I therefore turn to consider the application of the criteria under section 10(9), starting with S’s application for leave to apply in respect of G.

 

 

 

 

And in terms of any general principles to be extracted

 

 

  1. Conclusions
  1. When considering an application by a biological father for leave to apply for an order under s.8 of the Children Act 1989 in respect of a child conceived using his sperm by a woman who, at the time of her artificial insemination, was party to a civil partnership, the reforms implemented in ss 42,45 and 48 of the Human Fertilisation and Embryology Act 2008, and the policy underpinning those reforms – to put lesbian couples and their children in exactly the same legal position as other types of parent and children – are relevant factors to be taken into account by the court, alongside all other relevant considerations, including the factors identified in s.10(9) of the Children Act. In some cases, the reforms, and the policy underpinning those reforms, will be decisive. Each case is, however, fact specific, and on the facts of these cases, having considered all submissions from all parties, I find that the most important factor is the connection that each applicant was allowed by the respondents to form with the child.

 

 

As has been commented by the solicitors who were advising and representing the legal parents of the child, it becomes therefore extremely important that a clear understanding is reached and ideally recorded, about what each of the three parties involved (the biological mother, father and the legal parent who is the partner of the biological mother) intend and propose about the involvement (if any) that the biological father should have in the child’s life.

 

 

 

Warning, next section for law geeks only

 

 

All of the above is potentially interesting to the lay person, and I am sure the case will hit the national press, containing as it does the nature of the modern family, battling parents and the chance to be partisan based on ones political persuasion.

 

The next bit is not interesting to the lay person, and may possibly only be interesting to about five people in the country. Sorry to be one of them.

 

The Judge had painted himself into a bit of a corner, since on the first case, he had granted s10(9) leave and then on hearing the more substantive public policy arguments deployed by the legal parents on the second case, wanted to bundle both up together and consider both arguments together. But the s10(9) leave had been given, and there is no scope in the Children Act 1989 to give that leave and then hear an application to remove it. So, it was either find the power to revoke the order, or the case would have to go upstairs to be appealed.

 

 

That led to a very odd  but potentially significant sidebar discussion about whether a Court has the power to revoke its own order, or whether having made it, the Court was stuck with it, and the redress was limited to an appeal.

 

Rule 4.1(6) of the Family Procedure Rules 2010 (“FPR”) provides that ‘a power of the court under these Rules to make an order includes a power to vary or revoke the order’. Rule 4.1(6) is, of course, subject to the overriding objective of the FPR as set out in rule 1 “to deal with cases justly”, meaning inter alia so far as practical ensuring that parties are on an equal footing and that the case is dealt with expeditiously and fairly.

 

 

Which initially suggests that the Court does have a pretty sweeping power to revoke its own order, providing that it doesn’t put the Court in conflict with the overriding objective.

 

However,

  1. No party drew to my attention any previous case in which the scope of rule 4.1(6) has been considered, but the rule is in identical terms to rule 3.1(7) of the Civil Procedure Rules 1998, which has been considered in a number of cases in the context of civil claims. In Lloyd’s Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch) Patten J (as he then was) considered this power on an application by a defendant for variation of an order made by a deputy judge setting aside an earlier judgment obtained in default of defence, on terms that the defendant should pay a sum into court within 28 day At paragraph 7, Patten J said of rule 3.1(7) :

‘Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.’

  1. In Collier v Williams [2006] EWCA Civ 20, the Court of Appeal, (Waller, Dyson and Neuberger LJJ), considered the ambit of rule 3.1(7) amongst a number of provisions of the CPR. Giving the judgment of the Court, Dyson LJ at paragraphs 39-40 cited the passage quoted above from the judgment of Patten J in Ager-Hanssen and added:

‘We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).’

  1. Later, at paragraphs 119-120 he said:

‘this rule gives a very general power to vary or revoke an order. It appears to be unfettered. But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first. A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion …. In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.’

  1. In Edward v Golding [2007] EWCA Civ 416, Buxton LJ (with whom Wilson and Moses LJJ agreed) cited the above passages from judgment of Patten J in Ager-Hanssen and the judgment of Dyson LJ in Collier v Williams and observed (at paragraph 24):

‘The basis of that jurisprudence is that the jurisdiction under rule 3.1(7) is not a substitute for an appeal. There must be additional material before the court in the form of evidence or, possibly, argument. I would reserve the issue of whether additional argument in itself is enough to attract the jurisdiction of rule 3.1(7), but the general thrust of Collier is that the case before the court before which rule 3.1(7) is moved must be essentially different from one of simple error that could be righted on appeal.’

  1. In Roult v North-West Strategic Health Authority [2009] EWCA Civ 444 , the Court of Appeal rejected an argument that rule 3.1(7) could be utilised to vary or revoke an order approving a settlement in a personal injury case. Hughes LJ observed:

‘There is scant authority upon rule 3.1(7) but such as exists is unanimous in holding that it cannot constitute a power in a judge to hear an appeal from himself in respect of a final order. …. Like Patten J in Ager-Hanssen I would not attempt any exhaustive classification of the circumstances in which it may be proper to invoke it. …. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments. There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part. And it especially does not apply where the order is founded upon a settlement agreed between the parties after the most detailed and highly skilled advice. The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

 

Giving some qualification to the power to revoke. And of course, granting leave under s10(9) could be argued to be a  FINAL order in that application for leave. The application for leave is determined one way or another. If granted, then the Court then moves on to the application for residence or contact.   As you can see from the above, it appears pretty plain that the ability to revoke an order is limited to interlocutory and not final orders. That all suggests then that the High Court couldn’t revoke its own order granting s10(9) leave and consider the case afresh in the light of these new public policy arguments.

 

 

But clearly, the High Court Judge wanted to hear both of these cases and reach a fair decision, and therefore wanted to be able to set aside or revoke his original order granting s10(9) leave, to start with a blank slate when considering the arguments.   [You might think, when reading this argument, that you can detect the delicious taste of fudge]

 

 

  1. At the hearing on 22nd November, D and E, appearing in person, put forward only a limited range of arguments in opposition to S’s application for leave to apply for orders in respect of G. Those arguments focussed on the factual background, referring only briefly to s.42 of the 2008 Act. The skeleton argument prepared by Miss Russell QC on behalf of X and Y in the second case deploys a much wider range of arguments, based not only on the facts of that case, and, as one would expect, a closer analysis of the application of s.10(9) of the 1989 Act to those facts, but also on the policy considerations underpinning the reforms effected by the 2008 Act. The filing of that skeleton therefore gave rise to the prospect that, although the facts of the two cases were not only interlinked but also in many respects similar, the outcome of the applications for leave might be different if the court accepted the policy-based arguments deployed by leading counsel for the respondents in the second case but not cited by the self-represented respondents in the first.
  1. Having regard to the overriding objective of FPR, I concluded that such an outcome would be potentially unfair to D and E, and therefore to G. In those circumstances, I decided that it would be an entirely appropriate use of the power under rule 4.1(6) to set aside the order of 22nd November. To my mind it was unnecessary to analyse whether the new information which would be advanced on behalf of D and E was ‘fact’ or ‘argument’. It was, in my view, new material which the court had not considered at the previous hearing.
  1. An order granting leave to apply for orders under s.8 of the Children Act is a case management order. It is not a “final” order in the sense of an order that determines the substantive outcome of the proceedings. The court is obliged under the rules to exercise its case management powers in accordance with the overriding objective. Setting aside the order allowed the court to consider the two linked applications together, and apply its conclusions on the policy-based arguments to both cases. Such a course would not be unfair to S. Only a few weeks would elapse between 22nd November and the re-hearing of his application for leave. S would be able to deploy the same arguments based on the facts that had prevailed at the first hearing. He would in effect be in the same position as T.
  1. Overall, I concluded that the interests of justice would be best served by a re-hearing at which the court had ample opportunity to consider all the relevant arguments on both applications, followed by a reserved judgment. I therefore set aside the order of 22nd November, and as explained above the two applications were heard together.

 

 

I think that this is the right decision for the case and was the right thing to do, but there’s some squashing and stretching that had to be done.  Mmmm, delicious Judge-made Fudge.

 

But there you are,

 

A Court can revoke any order it makes prior to the final order (and granting of leave doesn’t count as a final order) if there is evidence to show that it is the right thing to do, and doing so doesn’t conflict with the overriding objective to conduct a case justly and expeditiously.

 

 

If you did make it that far down, here is a picture of Drawn Together’s Judge Fudge, who is laid back and is always “far too busy, being delicious”    [Drawn Together is magnificent, but really I cannot emphasise enough that it is Not Safe for Work, so do not watch it in your office]

 

 he is indeed delicious

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Letters of Destruction

Posted on February 1, 2013 by suesspiciousminds

 

You may well have heard that the new guidance on the instruction of experts came into force today.  If it is actually enforced, it will significantly reduce the number of experts and at the same time significantly increase the amount of preparatory work prior to requesting the involvement of an expert.

 

The Ministry of Justice published a jolly and triumphal press release about it, here

 

http://www.judiciary.gov.uk/media/media-releases/2013/tighter-rules-introduced-on-expert-evidence-family-cases

 

“New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.

Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.

The President of the Family Division, Sir James Munby, said:

“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”

“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.

“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.

In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.

The key changes to the existing Part 25 include:

  • a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
  • a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
  • in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.”

 

 

I was interested in the very last bit  – the Court approving the questions and setting them out in the order approving the instruction, because I wasn’t entirely sure that this claim was actually delivered in the changes, so have pressed a little further, and found that it IS, if the practice direction is followed  (yeah, right) :-

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Practice%20Directions/family-div-procedure-rules-2010-practice-directions-amendments-consolidated-04122012.pdf 

 

 

 

Well, it does seem, that if the Practice Direction is followed (ha!)  then rather than coming to Court with a name of an expert and some timescales, there should be a proper application, accompanied by a draft order [my underlining]

 

3.11 FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission as mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a) the issues in the proceedings to which the expert evidence is to relate and which the court is to identify; b) the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

 

(iii) are kept to a manageable number and are clear, focused and direct; c) the party who is responsible for drafting the letter of instruction and providing

the documents to the expert; d) the timetable within which the report is to be prepared, filed and served; e) the disclosure of the report to the parties and to any other expert; f) the organisation of, preparation for and conduct of any experts’ discussion

(see Practice Direction 25E – Discussions between Experts in Family Proceedings); g) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion; h) making available to the court at an early opportunity the expert reports in electronic form;

i)                    the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence

 

 

 

 

And then also, it appear that the party seeking the instruction should send the draft order and questions in to the Court in advance of the hearing

 

Asking the court to settle the letter of instruction to a single joint expert

6.1 Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.12(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings. In the magistrates’ court, the request should be sent to the relevant court or (by prior arrangement only) to any district judge (magistrates’ courts ) hearing the proceedings (and copied to the legal adviser) or to the legal adviser. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.

 

 

 

 

Well, my first cynical take on this is that this simply won’t happen. There’s quite a lot of this that was already in the Practice Direction on Experts which everyone cheerfully ignored. It is that traditional Practice Direction stance of rather than making two or three solid suggestions that everyone can follow, that you introduce a blizzard of utterly unworkable schemes all at once to the point where everyone takes one look at it and concludes that it is best to just pretend the whole thing doesn’t exist.

 

If it IS going to happen, and that the Judge refuses any expert assessment where the request is not Practice Direction compliant  [and that really depends on whether they are being sternly told behind the scenes that this is what they must do], then we are going to end up with an awful lot of adjourned CMCs, where we have to come back to Court and do it all again, only this time with reams of paperwork.

 [If a party seeks an expert assessment, and doesn’t come with all of the paperwork and the CMC has to be adjourned, are they at risk of costs orders? Yet another reason for ducking being the lead on any assessment or proposed assessment] 

If it IS going to happen, two major practice points arise. Firstly, the advocates meeting before the CMC would need to be happening much earlier than the two working days prior that it currently is  (which in reality will just mean a later CMC).  Secondly, whichever of the two parents lawyers decides to be the lead on the instruction of an expert, is going to have a huge amount of work in organising that instruction, far far more than at present, and their profitability (ha!) in the case probably immediately goes down the Swanee river.

 

So, if you are only looking for one expert, expect to see some quarrels at the advocates meeting about whether mother or father’s team should be the lead; as neither of them will really want to take on this burden.  

 

[I also expect that counsel attending these advocates meetings will regularly find in their brief “under no circumstances agree to us being the lead on the expert”   – we squabble about ‘who has to be the lead’ now, when very little is involved, but this is now a massive volume of work]

 

 

This may, cynically, be the way that the Government intend to reduce the number of experts – it hasn’t been possible to get the Courts to refuse assessments  (being that they tend to follow the line of the Court of Appeal, which has been very pro-second-opinion), so they will just make it very very unattractive for those representing parents to actually make the applications.

 

 

So, watch this space for the first appeal from a Court who refuse an expert assessment because this Practice Direction has not been complied with.

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