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My blood runs wild (and not as a result of angels in the centrefold)

 

I often kvetch about the President’s burning desire to make the welfare of the bundle paramount (which on the ground is resulting in me spending hours of precious time removing actual EVIDENCE that the Court has ordered be filed from bundles, negotiating with other sides about what statements should be removed, and bracing myself for the inevitable complaints at the final hearing that the whole case is now going to turn on that document), but I do think that His Honour Judge Wildblood QC has a point here.

 

Re A and B (children : fact finding) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B48.html

[Of course, when the Judge reads the next blog post, about Ryder LJ’s further pronouncement in the Court of Appeal on fact-finding, he will observe that fact finding hearings are still effectively banned and thus the hearing ought to have never happened, but that’s by the by]

 

i) The bundles. To deliver eight lever arch files to a judge on a Thursday evening for him to start a case on Monday morning is unrealistic where the summarising documentation is inadequate. To those who did so I pose this question: ‘How long would it take you to read that amount of material?’ During the hearing I asked what the advocates’ expectations were of me in relation to enclosures M, N, P and Q which extend to over 1,250 pages which had not been adequately summarised (medical records, Local Authority records etc) and the discussion ended with me understanding that I was asked to read them and summarise them myself during the hearing. That would have been manifestly unfair because the advocates and parties would not then know what I was taking into account when reaching a decision before I did so and would not have an opportunity to comment on things that I discovered. In the end I required a list of pages to be given to me from enclosures M and N and read those. I read the whole of enclosures P and Q over two nights (a total of 542 pages). If I had attempted to read 1,250 pages and each page had taken an average of one minute to read and summarise it would have involved over twenty hours of reading mid-case on part only of the documentation that was filed.

ii) The case was given a three day time estimate which was never realistic, particularly if I was going to be expected to read that amount of material during it. As it is I have dealt with the case in five days and have typed this judgment during the fifth day.

iii) The bundles that were produced were in disarray. Many pages were blank. Many reports were repeated. Some pages were upside down. The medical records were not in chronological order and switched between years randomly. Important documents were not included.

 

Even the purpose of this hearing was somewhat hard to fathom – there were two children A (aged 10) and his half-brother B (aged 7 months). A was in care for other reasons and B was living happily with his mother, about whom no complaint was made. The allegations related solely to the father – there was no proposal that the father move back in with the mother, and his contact was supervised twice per week. There were a wide range of allegations made against the father by the Local Authority (most having emerged from A himself).

  1. In this judgment I am critical of the Local Authority. I list the main reasons why at the end of the judgment. I consider that it has approached this hearing without any adequate consideration of the quality of the evidence that it could place before the court. Its approach has been unrealistic and lacking in analysis. As a consequence, scarce resources have been wasted.
  2. This has been a five day hearing which came into my list two working days before it started, bearing eight lever arch files. On the working day before the case started I held a telephone directions hearing in which Advocate B, Counsel for M2, rightly questioned the proportionality of it proceeding but was told by the Local Authority that it thought the hearing to be necessary; I had not been able to read enough of the papers overnight to intervene. I regret that.
  3. Given the outcome of this hearing I think that very little has been achieved from it. He oldest child, A, is in care and, by mutual agreement, does not have contact with his father, his mother or M2. There is very clear evidence that B’s mother cares for B well. She and B have lived together in a residential placement since 19th December 2014. Within the parenting assessment undertaken by the Local Authority at E106 the following is stated at E125 : ‘I do consider that B’s mother can care for him adequately in the community at this stage…[E126]…She has been unfailingly polite, patient, co operative and compliant throughout this assessment. She has responded to advice and guidance with polite interest but [we] have not been entirely convinced that she welcomed it…[E131] …there have been no concerns about her care and he is a healthy, happy baby who is thriving’. B’s mother has been assessed over a long period of time. The father, from whom she is now separated, has contact with B twice a week under supervision. The Local Authority’s position is that B’s mother has been assessed whilst in her current placement and that ‘no concerns have been raised with regards to her basic care of B’.
  4. As will be plain I have rejected most of the allegations that the Local Authority has made. Much of the Local Authority’s case rested on things that A has said against the father. In the telephone directions hearing that I held before the case started I enquired whether the Local Authority regarded A as a reliable source of evidence. I was told that it did; as the evidence (both expert and factual) shows, that was totally unrealistic. When I asked the child’s solicitor what the guardian’s assessment was of the reliability of A I was told that the guardian was away (and has remained away during this hearing) and so it was not possible to answer my question, a response that does not require further comment.

 

[Although that response does not require further comment, I must remark that there is considerable restraint being exercised there. On a case that turns largely on the reliability of A as a complainant, it is astonishing for the Guardian or those representing her not to have a view as to that reliability.]

 

The Judge was also rightly unhappy that the chronology provided was wholly inadequate. The absence of a full chronology meant that several vital questions were unanswered and could only be established by a trawl through the eight bundles of evidence.

 

  1. Chronology – As I state at the end of this judgment when I deal with matters of practice, there was no adequate chronology in this case to summarise the evidence and put matters in context. As Lady Hale observed in a case relating to another area of family law (home ownership), context is everything. For instance (and this is an abbreviated list) i) What preceded the ABE interviews? ii) When did the child make the first allegations against the father? iii) When was the firebell incident (when A says in interview the father began to abuse him physically)? iv) What sexualised behaviour did the child exhibit and when? v) What other false allegations had the child made and when? vi) What state was the child in when he came from Portugal? vii) What happened in the first set of proceedings which ended in August 2013? viii) What was A’s weight loss (see above)? ix) When did A make the first allegation against M2? x) What role did M2 play in A’s care? xi) What does the information from the school demonstrate when it is put into a schedule (I had to require production of the school / home books and the ‘SF’ file was handed in at the start of the hearing)?
  2. It has been left to me to put the evidence in order (and I say more about this at the end of the judgment). That being so I think that it is essential to put the case into its chronological perspective if any sense is to be made of it and I have done that by putting the evidence into chronological order. The result is a judgment of much greater length than I would have liked which has taken me a very long time to produce. I have typed it within the five day listing that I have had to allow for this case

 

The judicially composed chronology is excellent, and completely necessary to make proper sense of the case.  Of course, whilst it is excellent and necessary, it breaches the President’s guidance on chronologies, by first going back further than 2 years in time, and second it is far longer than the President’s mandate.

I can’t say that I’ve ever heard of a Judge having to produce their own chronology, however. That is not an activity that is likely to make him warm to the applicant’s case.

 

The Judge also felt that none of the professionals involved – either the professional clients or the lawyers had properly attempted to analyse the evidence. With eight bundles having been produced, everyone had clearly been very dilligent in identifying bits of paper that needed to be collected up and distributed, but somewhat lacking in the process of analysing where all this evidence would take the Court.

v) The advocates themselves had not seen relevant material. The papers from the previous proceedings were produced late and omitted important material, such as the threshold document from the 2013 proceedings. Nobody knew, when the case started, what had happened about the January 2013 allegations within those proceedings. There was no mention of the parenting assessment, the psychological report or the guardian’s report in the chronology. I had to call for the threshold document from those proceedings. The chronology jumps from 21/01/13 to 01/05/2013 then to 10/10/2013 and therefore somersaults over the 2013 proceedings. That is just not sensible.

vi) It was perfectly plain to me that there had been no realistic assessment of the evidence that was being placed before me by the Local Authority, upon whom the burden of proof rests. The Local Authority is the prosecuting authority and has the burden and responsibility of proving the case that it brings. There are many examples of this. A particularly obvious one is that A says that his father started to hit him after the firebell incident in July 2013 – what impact did that have on the January 2013 allegations against the father? The sexual allegations against M2 should have been put in the context of the other material, not least the similar and false allegations that A had made against others. The chronology that I have put together (which can be compared with the Local Authority chronology) speaks for itself. Huge parts of relevant and important evidence had been omitted in the Local Authority’s analysis.

vii) There has been no overview by the Local Authority or by the guardian (and I deliberately include the guardian and the child’s solicitor in this) about the reliability of the child’s evidence. That is not the fault of this child. But it does mean that before presenting a case that is so heavily dependent upon what the child has said it is of obvious importance to consider the reliability of the child as a source of evidence. I held a telephone conference hearing on the Friday before the case started and I asked for the Local Authority’s assessment of the child’s reliability. The guardian’s solicitor told me that the guardian was not available and she could not take instructions on that issue. The Local Authority counsel told me that the Local Authority viewed A as a reliable source of evidence. It was plain that there had been no proper assessment of this issue and that there had been no proper thought given to the many untrue allegations that this child had also made. That is not just unfair to the parties but it is unfair on the child whose future should not be subject to such a process.

viii) The important evidence relating to A’s weight and the condition of his feet and hands was not summarised or analysed before the case started. I created the weight chart which I extracted from the papers. Other than that the important job of seeing what the child’s weight had been had been covered by Dr GR in his report. If the point was to be made and proved it needed to be supported by evidence from the medical records. The child’s solicitor tried to cross examine on this point without any information from or reference to those records and, in doing so, sought to make a point that was wholly invalid. As to the state of A’s feet in January 2014 it was necessary for me to require an analysis of the level of pain that the child would have felt at the time that the blisters etc were developing (would it have been obvious to his carers that he was so injured?); I very nearly made a totally false assumption that the child would have been in obvious pain (as to which see Q10).

ix) Despite the abundance of evidence about the psychological difficulties that A has, there is no evidence that any consideration was given to how A should be interviewed in the light of his very specific difficulties. The questioning that I saw gave no demonstration at all of questioning being crafted by reference to those difficulties or in a way that reflected the very large amount of medical information that was available in relation to him.

x) There was a wrongful absence of enquiry into the interview that took place on 15th January 2013 [the M10 interview]. There was no recording of it or any evidence of an investigation arising from what A said in it. There is no point in me expressing my opinion about the standard of practice that those absences demonstrate because the points are too obvious.

 

 

None of the findings sought by the Local Authority (and supported by the Guardian) were made. It is therefore theoretically possible that either of them could appeal. I really wouldn’t….

 

 

 

 

The spine was white like snowflakes

No one could ever stain

But lifting all these bundles

Could only bring me pain

 

Hours go by, I’m flicking through, I’m reading J nineteen

But there’s no hint of threshold, on the pages in between

 

My blood runs wild

I can’t believe this crap they’ve filed

My blood runs cold

The chronology is not that old

Chronology is not that old

 

Na na na na na na na na na

 

(Apologies to the J-Geils band)

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About suesspiciousminds

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

7 responses

  1. I think I may have asked this question before at a different point but I am still somewhat mystified so I will ask it again in a slightly different way:

    If a Bundle were to be prepared in a family case that (somehow) met all the criteria for what an ‘ideal’ Bundle is supposed to contain, what, exactly, would that be? And who is responsible for taking evidence out, making meaningful summaries and what is the point of a Chronology that only goes back two years? We can all figure out what has happened over two years from all the other Papers – it is the patterns of behaviour/engagement that have developed over the longer-term that we need the information on.

    And, while we are at it, is there supposed to be a different type of Bundle for those undertaking assessments (experts for example) which includes evidence that might be relevant to a Psychologist or Psychiatrist (for example I always like to comment on ‘ability to work openly and honestly with LA’ and ability to engage questions by actually checking the historical evidence from professionals other than the SW – generally because I think the Court should know if parents have engaged perfectly well with a range of other professionals for a number of years but fallen out with SW over (for example) Section 47 inquiry – and as a result been labelled as hostile etc) I couldn’t prepare a Bundle to ensure it contained all the right legal documents as I am not a lawyer so how can a Bundle be selectively prepared by a non mental health professional to ensure all the key data (esp historical evidence is in)?

    Reading the Papers – this now (according to the LAA) only takes 5 hours for a single person case. That can be adequate in a non complex case with a nice neat 350 page bundle to hand. For three or more people the whole cap is set at 45 hours so I presume that the reading time does not increase significantly. For anyone (ie everyone) who doesn’t want to apply for prior authority those are the figures experts have to work with, even when filed evidence in a big family matter may well run into well over a thousand pages…what then?

    Answers on a postcard please

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  3. But where is the systems analysis or any plan for this? (Though please not by Civil Servants who do business degrees and end up drafting the CMO). It really won’t do to criticise and leave it at that, particularly when the system is under strain and many lawyers are leaving this area of work because the game isn’t worth the candle. If the judge found it hard at his pay grade to find the time, think what it’s like for those down the food chain trying to hold a business together.

    The judge clearly was right to identify poor case management and there have to be improvements. That said, and whilst I’m cynical about positive psychology, this doesn’t seem to me to be the best way to get them. There is not the slightest suggestion of bad faith here but what there is, is a description of a great deal of work that should have been done, but in a very short time and no doubt for free.

    There are people, and Andrew is so clearly one of them, that know the law, know what happens on the ground and why and are also articulate and reasoned in saying so. That is experience that the Pres would do well to listen to and act upon.

    How can improvements take pace unless someone gets to grip with why things end up like this? Is there even a plan for this

    • I think a massive single change would be that the Courts allow the parties to list the case for final hearing, in cases where the writing is on the wall that this is going to be a fight. That would avoid delay, since you wouldn’t be trying to find at week 20, a 7 day final hearing slot that accommodates the Guardian and any expert and Court availability. More importantly, it would mean that the advocates at the IRH would be trial counsel – the final hearing date would be booked and you’d have to find an advocate who could do both. That means that at IRH, the advocates know the case that they are going to run at final hearing and what documents THEY need and what issues THEY want the Judge to deal with. And I’d make IRH’s meaningful – we were all told before the first PLO that at an IRH everyone there would be on top of the case and the Judge would cut though the issues like butter. In reality what happens is this “Your Honour, we aren’t agreed, we want to list for a final hearing” and there’s some bickering about duration of final hearing and when the Court can fit it in. That’s because Judges aren’t given time in the listing to get on top of the papers for an IRH and the advocates doing the IRH know that because a final hearing won’t be listed taking their availability into account that they don’t want to tie the hands of whoever might be doing the final hearing.

      I don’t think that would cost much money – there’s more Judge time involved in preparing and hearing a more focussed IRH, but you should save that in reducing the number of contested final hearings and the duration of those hearings.

      I’m yet to hear a good reason from the MOJ as to why in a case that everyone can see is going to be a bun-fight, we have to wait to week 20 to get a final hearing date. At least 20% of cases, you can call from the outset – this one is going to need a final hearing, for sure.

  4. My blood boils too! What a complete waste of time and money. The decision to bring this case to court shows poor professional judgement.

    The care proceedings are about child A and the focus should have been on the care plan for A. So, why has this fact-finding hearing been about child B, a 10 year old boy of a different mother who is extremely disturbed and out of control? …..

    I guess that the LA was so concerned about B that they were became distracted by his problems and thought the evidence against father should be tested (though this was not spelt out). The judge is absolutely right to expect social workers to manage these kinds of uncertainties themselves – and not bring inappropriate cases to court.

  5. … another case where a clear definition of issues at the outset, directed then to what evidence is necessary to deal with those issues? Or is that to over-simplify?

    • No, I think that is spot on. The problem with defining the issues is that the current system leaves that in the hands of the parties – which means you can either have very focussed and tight definition (that nobody will ever agree to) or very woolly inoffensive definition (“whether the parents can provide good enough care within the child’s timescales”) that will be agreed but add nothing illuminating to the case. The best thing would be for the Judge at CMH to be on top of the papers and to identify what the issues FOR the Court really are.

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