RSS Feed

Tag Archives: bundle

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)

Advertisements

Go directly to the Ninth Circle of Hell, do not pass Go

 

Dante, in his travel guide to hell, sets out the various circles of hell and those within them. Within the ninth and final circle reside for all eternity four sorry individuals, exemplars of the worst that the world has ever had to offer (Dante’s work was written prior to certain unpleasant world leaders of the 20th century, and our current Lord Chancellor, so it may be in need of an update)

Those individuals are Cain, Athenor of Troy [betrayed his city to the Greeks], Ptolemy son of Antabus [invited people to a banquet and killed them] and finally Judas Iscariot.

We can now add to that circle of hell, a further group of terrible sinners, and one will not be surprised to learn that they are going to be local authority lawyers.

This arises from the President’s decision sitting in the High Court, in Re W (Children) 2014 [2014 EWFC 22]

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/22.html

 

The President has not yet found a power within the Family Procedure Rules to banish local authority representatives to the deepest circle of hell, but it is only a matter of time and generous interpretation. After all Rule 4.4 of the FPR 2010 sets out that the Court has powers to o)take any other step or make any other order for the purpose of managing the case and furthering the overriding objective and that pretty much seems to cover it.

And if that unbridled power is not enough, surely the inherent jurisdiction is the answer. If only I had known during my law exams that “The Court could use the Inherent Jurisdiction” is a valid answer to 90% of questions, I could have skipped all that revision.

I will come onto the offence that has provoked such ire in a moment, but the case is yet another of the ones where the Local Authority are late filing their evidence (the social worker was off sick – how dare a human being suffer from an illness that affects the Almighty Timetable) and allows the President to use his favourite word contumelious.

(I have my own suspicion that the President once put that word down in Scrabble and was robustly challenged, and since that time has been working to revive its popularity so that this will never happen again)

Of course on a 26 week window, there is not time for slippage, and of course if the Local Authority is late, that causes a knock-on for the other parties and will mean the case not being ready for IRH at week 20. And yes, over a period of time Court orders about filing have unpleasantly become vague aspirations rather than hard deadlines. I am in agreement with the President that this is a bad thing. I also agree that something must be done.

I’m not against restoring the principle that if an order says 4th March, it means on 4th March the parties have that document in their hands, not that the author of it starts thinking about writing the document on 4th March. Court deadlines need to go back to being deadlines (and not in the Douglas Adams sense “I love deadlines, I like the whooshing sound they make as they fly by”)

And of course, if there is slippage in the timetable, the Court must be told and be able to call the case back in. I think that the President’s idea that a Court order authorising the delay must be obtained for a 15 minute delay does not work in the real world.

A real world that has some Courts in England answering correspondence in June that was sent to them in February, that has Court staff so beleaguered and overworked that the remedy is to lock the doors of the Public Counters and not let the public in. Where sending an email to the Court service is akin to dropping a message in a bottle into the ocean – one hopes it will reach its destination but it would be unwise to put money on it. A real world where if every time a person was going to be 15 minutes late filing a document a Judge would have to consider an application and grant it and get an order typed and posted out to all of the parties. A real world where, you know, human beings get sick, and they aren’t always able to tell you the day on which they will no longer be sick and can produce their document.

In principle, one can agree that delay in filing on time is bad and the mindset needs to change. And that if there is delay, the Court must be alerted to that and given the opportunity to adjust the timetable. The President points out in Re W that there is not only no power for the parties to agree a revised timetable amongst themselves they are expressly forbidden to do so.

Indeed, such agreements are forbidden by FPR 4.5(3):

“Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time; and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties

In accordance with and deriving from the court’s powers under FPR 12.24, the standard form of case management order, use of which is mandatory, spells out (as did Judge Rutherford’s order in this case) the consequence of failure to comply, namely the obligation on every party to “immediately inform the Court if any party or person fails to comply with any part of this order.”

Practitioners may have found, as a result of Re W and guidance being given to CAFCASS, that there is now a semi-official policy that the parties should inform on anyone who has the temerity to be late filing a document. The reader will of course recall that one of the major planks of the Family Justice Review was that none of the professionals or agencies working in family justice trusted each other, and what could be more conducive to rebuilding that trust than encouraging the parties to inform on each other for wrong-doing?

Deep breath.

Now, the egregious offence. The “Go to Hell” offence

Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:

“Unless the court has given some other direction or paragraph 7.5 applies” – this relates to hearings listed before a bench of magistrates – “only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses.”

Bristol City Council had lodged a duplicate bundle, marked ‘Witness Bundle’, and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
Yes, the President was actually annoyed that the Local Authority DX-ed a witness bundle to Court rather than the advocate carrying it to Court. That is strictly verboten and the Local Authority outraged the Court by defying the Practice Direction. And the witness bundle didn’t end up being necessary, which is a double-fault.

I am perplexed that at a time when the profession is in melt-down, when public funding has been withdrawn from the most deserving, when solicitors are being laid off due to cuts, when the public are being locked out of Public Counters, when the family justice system is under siege by the Press, that anyone could find the time to be annoyed that a superfluous witness bundle had arrived at a Court.

If you have a witness bundle that you don’t need, you can just send it back, you know? It doesn’t require a bomb-disposal unit to remove it from the premises. It is just a lever arch file.

But this is now law, and the President has said in Re W that Local Authorities who breach the law can be ‘named and shamed’ in public judgments, be ordered to pay for the costs of that naming and shaming. If you DX a witness bundle to Court rather than carrying it there, then you are technically liable for those sanctions. And if you avoid them from the trial judge, you might still get hit with them if the case is appealed (one hopes that the witness bundle irregularities in and of themselves don’t amount to an appeal, but frankly, who knows any longer?)

This is symptomatic of the problem – professionals have been drowned with rules, practice directions, guidance, case law, consultations, Views. One could spend so long establishing the exact precise procedure for doing anything that the task itself takes five times as long.

If you reach the point where you are regulating everything to microscopic level, then the sensible useful rules get lost within the morass of rules and guidance for things that never needed to be regulated. Who honestly CARES how a witness bundle gets to the Court building as long as there’s a witness bundle in the Court room if one is needed?

This seems to be a climate where if one says “red tape” the response is not “well, we need to cut that down” but rather “What, precisely, is the shade of red being used?” and “What, precisely is the width of the tape? Does it comply with Practice Direction 19B Dimensions of commonly used objects?”

By way of illustration – if you are playing Monopoly, there are a few problems with the game. It takes too long, for one thing. And for another, the last part of the game is only fun for the winner and miserable for everyone else. So, let’s appoint the President to tweak the rules to fix those problems.

Well, now we have a game of Monopoly where :-

if you’re buying Bond Street you need to submit a full-blown mortgage application with supporting documents

if you’re putting a house on Mayfair you need to seek planning permission, consult the local community and submit detailed architectural plans (making sure that you are familiar with the building regulations)

if you want to buy the Waterworks there should be a privatisation fully compliant with EU procurement rules and the opportunity for shares in the Waterworks to be offered at a preferential rate to certain key stakeholders first.

There is a prescribed period of time for shaking the dice, rules about what portion of the dice has to land on the board for it to be considered a null throw and whether it is permissible to whisper “Don’t be a six” to the dice in the pre-throw procedure.

And heaven help anyone who wins second prize at a beauty contest.
Has all of that fixed either of the problems we set out to resolve? Or has it made the game even slower and even more miserable for everyone involved?

Sadly, although we have a choice with “Monopoly President’s Edition” simply not to get it out of the cupboard and play it, we don’t have the same choice with care proceedings.