If you have ever drafted Facts and Reasons for the Magistrate’s Court, or ever seen Facts and Reasons drafted by one of the parties, you are going to want to read this. Likewise if you are a Magistrate, or a legal advisor to magistrates.
In 2013, there was a civil case, in which the Judge lifted about 90% of his judgment from the written submissions of one party.
Crinion v. IG Markets  EWCA (Civ) 587
In that case, the Court of Appeal felt that the Judge had (just barely) added enough of his own material to avoid the decision being overturned on appeal, but deprecated the practice [the extracts below are one from each of the Appeal Court judges, just to illustrate how much they didn’t like it]
Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.
Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done.
But we trust that no judge in any future case will lift so much of a claimant’s submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant’s case together with a reasoned rejection of it. It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.
Since that time, and certainly post Re B-S, I have been waiting for the Courts to rule on the widespread practice that one party (usually the applicant) is asked to draft Facts and Reasons (the equivalent in the Family Proceedings Court to a judgment) which the Magistrates then consider.
It didn’t seem to me a practice which could stand. Even where the practice is very transparent, with all parties seeing and having an input into the draft, and it being confined to agreed orders or orders that are “not opposed but not agreed”
[In case you think I am not being clear enough, I think it was WRONG that Magistrates Court asked Local Authorities to do this and I am GLAD that this High Court case below brings it to a stop]
The High Court looked at this issue in Re NL (A Child) 2014
In this case, the drafting of the Facts and Reasons was even more dubious, since it appears that the draft was sent by the Local Authority to the Legal Advisor and it wasn’t something where there was input or oversight by the other parties.
- Compilation of the Justices’ Findings of Fact and Reasons
- Lastly in relation to the way in which the proceedings were dealt with at the Family Proceedings Court, I should mention the manner in which the Justices’ Findings of Fact and Reasons were compiled.
- The 1st November draft within the appeal bundle caused me to question whether the local authority had been involved in its creation. Initially, I was told not. Later, and having taken more detailed instructions, Miss Watson explained that Counsel (other Counsel), rather than the Joint Legal Team, had drafted the entire document.
- The draft was sent to the court, by email, at some stage prior to the hearing. It was made available to the parties’ legal representatives, in hard copy, outside court on the morning of 1st November.
- The mother’s Solicitor had “an inkling” the document may have been handed out at court by Counsel for the local authority. The mother’s legal team had no input into the draft.
- Miss Watson has also discovered that on 1st November at court, Counsel then instructed for the local authority amended the draft to reflect the parties’ positions and included reference to Dr van Rooyen’s report. The amended document was sent electronically to the legal adviser during the hearing and became the perfected ‘Facts and Reasons.’ I had assumed, wrongly, that such minor amendments as there were, had been made by or at the behest of the Justices.
- It is suggested on behalf of the local authority and the children’s guardian that it would have been possible, in theory, for the mother’s legal team to have requested alterations to the document. In practice, I entertain doubts as to whether those who represent parents at interim care hearings would have the temerity or, indeed, any proper opportunity to undertake a significant re-draft on the day.
- More generally, Miss Watson explained that the Family Proceedings Court expects the local authority to provide draft ‘Facts and Reasons’ for every public law hearing; and that where such a document has not been sent in advance, a request for its production will be made. Miss Watson described a customary practice of such documents being sent electronically; and thus, they may be easily adapted. Over the last 18 months or so, the local expectation – that such drafts will be provided – has become the norm.
- The Family Proceedings Court, so I was informed, does not expect or require that such draft documents are circulated to the parties in advance of the hearing. Legal advisers do not routinely inquire as to whether the parties have received them before the hearing begins. According to Miss Watson, whilst local practitioners know about the court’s expectations, none of these practices “sits easily” with the Solicitor members of the Joint Legal Team.
- Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.
- The first matter for emphasis is that every parent is entitled, pursuant to Article 6 of the European Convention on Human Rights to a fair trial.
Article 6.1 reads as follows – “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
- Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.
- Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd  EWCA Civ 587. As Sir Stephen Sedley observed,
“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”
- Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.
- I am reassured that whatever has occurred in recent years, it has not always been the case that, nationwide, local authorities have been required to provide draft ‘Facts and Reasons’ documents. I know from past personal experience that diligent legal advisers have provided legal and sometimes proper secretarial assistance to Justices in formulating their Reasons. I have been present whilst such judgments have been compiled.
- Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.
- The President of the Family Division, Munby P, has read and approved this section (paragraphs 57 – 71) of the judgment.
Just in case all of that was too long, let’s just look at paragraph 69
Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.
This judgment may also be of interest to professionals (and parents) for three other matters
The first is the rapid instruction of an expert (in this case it was Dr Celeste van Rooyen) who was asked by the Local Authority on 31st October 2013 if she could prepare a report and the report was then provided by 5pm that same day, based on reading the papers and a telephone conversation between the expert and the social work manager – the case was in Court the next day. Underlining is mine for emphasis.
- The ambit of Dr van Rooyen’s instruction
- My reading of the papers prior to the hearing on 28th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother’s abilities to look after NL.
- The letter of instruction to Dr van Rooyen invited her to undertake “a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings.” She was asked, insofar as she was able, to provide her view in regards to (the mother’s) history of drug use, the current treatment she’s receiving and her prognosis for abstinence in the future.” The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.
- There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].
- Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, “I hadn’t because of tight timetable.”
- That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen’s report came to be prepared. The letter of instruction is dated 31st October 2013. In the section headed “Timetable,” it is recorded that the local authority’s lead Solicitor understands that Dr van Rooyen was “able to file (her) report by 5pm on Thursday 31st October,” that same day. The first hearing in the Family Proceedings court was scheduled for 1st November.
Dr van Rooyen’s involvement – fundamental flaws
- I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen’s involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.
- It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].
- To my mind, it is quite simply unacceptable for an ‘independent’ expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.
The second is the High Court’s investigation into why that expert evidence was obtained in such a way, and the importance that 26 week deadlines don’t lead to unfair practices. “Justice must never be sacrificed on the altar of speed” [Hear, bloody hear]
Rationale for the instruction
- The reason why the local authority acted as it did, requesting Dr van Rooyen’s assistance in preparation for the 1st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a “Triage Assessment” occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe.
- Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children)  EWCA Civ 1146 he said – “Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”
- More recently, in his ‘View from the President’s Chambers (7)’ entitled “The process of reform, changing cultures” the President reiterated that message saying, “We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy.”
- My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.
- Overall, having conducted an extensive review of what happened in the period between NL’s birth and 7th November, I conclude that the mother and NL were unfairly treated; that the evidence justifying their separation was flawed; that the Justices’ decision to separate was wrong because NL’s immediate safety could have been secured by remaining with his mother at [the resource]; and that, accordingly, the interim care order predicated upon continued separation must be set aside.
The final point of interest is this
- NL was exactly one week old at the time of the hearing. He had been with his mother throughout his time at hospital. The midwifery reports from [the hospital where he was born] were uniformly positive as to the way in which he was being cared for on all levels by her. The mother’s suggestion had been placement together at [the resource] where there is an abundantly safe and protective environment for a neonate. It has a deservedly high reputation – no one has suggested otherwise. As Dr van Rooyen said in evidence albeit on 7th November, “[It] is excellent.”
- The Justices’ first consideration should have been to keep NL together with his mother for the very short interval – 6 days – between the ‘holding’ and contested hearings. That should have been “the default setting”. Nothing within the papers, to my mind, justified immediate separation because of risks to NL’s physical or emotional safety; quite the reverse. I would like to believe that had their attention been drawn to the three propositions identified within Re LA (supra), the Justices’ decision at the first hearing would have been different. There is, after all, an elemental as well as a physiological need to keep mothers and new born babies together wherever possible, so long as the child will not be endangered.
(This is nothing new, but it is put so very plainly that it may be a quotation that comes up in future cases)
And the remarks made by the Judge about the second contested ICO hearing a week later, where the Magistrates Court seemed to place emphasis on the harm of moving the child from foster carers
- 7th November hearing
- There can be no denying that the outcome of the 1st November hearing paved the way for what happened 6 days later. It is not just that the two Findings of Facts and Reasons documents are strikingly similar – the majority of the paragraphs are identical – as the result, almost certainly, of ‘cutting and pasting.’ It is also that by the time of the second hearing, NL’s move to a foster home on 2nd November is identified as a reason against reuniting him with to his mother. The Justices decided that such a change in his circumstances “may have an effect upon him. NL is very young and needs to form an attachment to his primary carers.”
- I found that evaluation both startling and disturbing. The fundamental principle is that wherever possible, consistent with their welfare needs, children deserve an upbringing by their natural parent(s). It seems to me wholly unwarranted to deploy the status quo argument as part of the reason for continuing an interim foster placement for a week old infant.
- This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.
[My thanks to Martin Downs of counsel for his snappy title, which I have been waiting to use for about six months…]