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Court of appeal sweepstake

Posted on February 12, 2013 by suesspiciousminds

Yet more pondering about the 26 week timetable unofficial roll-out a year in advance of the projected Children and Families Bill becoming law, and whether there is a hint in the Family Modernisation second update?

 

 

This continues to trouble me, and I know others. I warned way back in April 2012 that the new Court computer system seemed to have implemented by stealth a presumption that a care case would finish in 26 weeks, and that reasons for not doing so would have to be recorded, and that this was inevitably going to have an impact on the timetabling of cases

 

 

https://suesspiciousminds.com/2012/04/13/gone-till-november-ill-be-gone-till-november/

 

 

 

And here I blogged  back in October about the issue being raised before MacFarlane LJ and Ryder J at the Nagalro conference, and whether or not it was said that there was no such policy of 26 weeks being the starting point and whether a Judge applying such a policy ought to be appealed. We have never got to the bottom of what was really said

 

https://suesspiciousminds.com/2012/10/19/ive-got-twenty-six-weeks-to-go-twenty-six-weeks-to-go-or-have-i/ 

 

 

I am aware that around the country, orders are being made, setting out whether a case should be concluded within 26 weeks or not   [not “This case does not require a 40 week timetable and can be concluded by week 26”, but the reverse “This case has issues that require that the proceedings go beyond week 26”].

 

And they are made at a very early stage of the proceedings.

 

Without a doubt, the Court has the power to determine when a case should be concluded, and set a timetable for the expeditious resolution of the case, and the fixing of that timetable is within the judicial discretion. Robust case management is a vital judicial function, and avoidance of drift and unnecessary delay is a commendable goal.

 

And without a doubt, although the law currently (through the Public Law Outline) works to a timetable of 40 weeks, the Court has the power and discretion to set a timetable that is less than 40 weeks, or indeed more, in accordance with the child’s welfare.

 

What troubles me is the importation of a presumption that the starting point is 26 weeks when there is no law to that effect.

 

 This is not a trivial matter. Decisions about whether pieces of evidence, including independent assessments, can be obtained, are made on the basis of whether they fit with the timetabling of the case, and there is a considerable difference between 26 weeks and 40 weeks  (which is our current ‘starting point’, that can, as I have said, be deviated from)

 

The other pivotal consequence of this is that setting a 26 week timetable as a starting point  (before any of the accompanying measures such as pre-proceedings work being improved and CAFCASS playing a larger role in the early stages of the proceedings have been formulated, never mind implemented) means that a parent simply has far less time to demonstrate change, or to accept the need for change.

 

Those 14 weeks, or 3 ½ months, are a period where the parent could attempt to evidence growth in insight and change, or evidence having tackled the problems. If we remove that, there are going to be cases when a parent who would have made use of it will not have that opportunity.

 

What worries me is NOT deciding the case quicker, it would clearly be better for children to have the decisions made for them promptly and that is in accordance with the often quoted but often ignored principle of no delay enshrined in the Act.  No, it is my underlying fear that cases will end up with different outcomes when they are decided in 26 weeks than if they had run for 40 weeks.

 

 

This is the latest glimmer on it, from the Family Modernisation second update. Bear in mind that this is not a statutory instrument, nor a practice direction, nor guidance, nor anything that could be relied on by law, but it is in a sense a marker.

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_implementation_newsletter2.pdf

 

 

This is the passage I am interested in :-

 

One of the key clauses in this Bill is that care or supervision orders should be determined without delay and in any event within 26 weeks beginning with the day on which the application was issued.

 

Although this 26-week time-limit will not be a legal requirement until the Act is enacted (probably in April 2014) the President is keen to encourage those involved in the family justice system to continue to use the interim period before implementation to develop their practices to prepare for commencement. Cases should be managed by judges to reach a just conclusion without unnecessary delay.

 

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case

 

 

I would have preferred this to be far less ambiguous. The first two paragraphs I agree with entirely. The third I find to be unclear  – it doesn’t condemn the practice of setting 26 week timetables a year in advance of this becoming law. It doesn’t say, what one would have hoped, that there is no starting point of 26 weeks, and that whilst it might be appropriate in some cases, the timetabling exercise should not be carried out with that “starting point” in mind.

 

It is nowhere near as strong as the remarks which were reported to have been made by the senior judiciary at the Nagalro conference (though as we know, we shall never really get to the bottom of what precisely was said)

 It is perhaps interesting, and illustrative of the fact that the 26 week target  has indeed been secretly rolled out that the wording is not

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in 40 weeks or less dependent on the facts of the case

 

but the reverse, that it may be 26 weeks or more.  Is this a tacit endorsement of Courts having in their mind 26 weeks as the goal to aspire to?

Given that we know that the Court computer system is recording the cases that finish beyond 26 weeks and reasons for this, are there performance indicator statistics being gathered from that computer system that shows how many cases ARE going beyond 26 weeks, and have targets been set for what those numbers or proportions should be?   Or am I Marvin the Paranoid Android?

 

We remain in limbo until someone whose client is materially disadvantaged by the mental “starting point” of 26 weeks takes the case management decision to appeal.  We also have, at this stage, no real sense of which way the Court of Appeal will go on that.

 

They could take the strict law approach of 26 weeks being a creature of the imagination and 40 weeks being the starting point set down in actual law, or they could go the judicial discretion, case management powers and avoiding delay approach.

 

 

So, place your bets – will the first appeal be from the North, South, East or West of England, and will the Court of Appeal back the Judge or back the PLO?  The Court of Appeal haven’t shown much love for the PLO to date, but generally in slapping Judges who tried to case manage in accordance with its principles where the Court of Appeal felt that led to unfairness. So on the body of their decisions, my gut is that they should be slapping this 26 week starting point. But I would not put money on it going that way.

 

[I’ll emphasise again for clarity, I see nothing wrong with a Court looking at the individual case and determining that this case should, on the issues and facts, be resolved in 26 weeks, or 19 weeks, or 52 weeks that seems to me to be a perfectly proper judicial decision. 

 

My issue is with an unwritten principle that ‘all things being equal, a care case should finish within 26 weeks, and there would need to be reasons to go beyond that’ when that is not currently the law.  Or even that this is a perception which is being allowed to persist, there not being a clear statement to the contrary. ]

 

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“Here they are, they’re so appealing…”

Posted on March 30, 2012 by suesspiciousminds

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

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