A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and
(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and
(B) There were sixty four Court bundles (and even whittling it down for the appeal there were still 27 just to decide the permission application)
Re A and B (Children) 2016
The impact of confidentiality on the appeal process
- For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
- The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
- I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.
That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.
However, the sheer volume involved made that difficult – doing legal work for nothing is one thing, but reading 64 bundles of evidence is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)
28th July 2016 hearing
- Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
- It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
- In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.
9th September 2016 hearing
- The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
- It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
- At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.
The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.
If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.