Composite threshold documents – in which, a tightrope is walked

Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.

Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…

Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.

Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.

I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

And the composite threshold document then becomes.

Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.

Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?

This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.

For example, here are three acceptable composite documents.

The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.

The Judge deals with this without the need for fox and dog imagery.

• As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.

Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…