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Re D (part 2) a damp squid

 

 

The President’s judgment in Re D  (part 2) is up.  The blog post about part 1 is here:-

https://suesspiciousminds.com/2014/11/03/everyone-really-ought-to-read-re-d/

Re D is the case in which parents had a care order at home, the LA removed under the Care order, there was no legal aid to challenge that decision despite father lacking capacity to instruct a solicitor. Then the LA lodged an application for a Placement Order, and as it was not joined up with care proceedings, there was no legal aid for THAT either.

Father’s legal team were not only acting for free, but they had to write the Official Solicitor an indemnity that if a costs order was made against the O/S they would pay it. Which is above and beyond.

So Part 2 is all about whether Legal Aid would be granted for the father under s10 LASPO (exceptional circumstances) and if not, what would happen.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/2.html

 

Annoyingly, as keeps happening before the President, the Legal Aid Agency eventually blinked and granted funding, thus avoiding a judgment that might declare that s10 LASPO as being practiced is incompatible with article 6.  So we don’t get a valuable precedent because there was no live issue to try. Grrrr.

 

However, note that the public funding granted here is still subject to an ongoing merits review  (that’s NOT what happens in care proceedings – even if your case looks hopeless you are still entitled to have a lawyer fight it for you)

 

The next hearing took place on 2 December 2014. As can be seen from the Annex, the final piece of the legal aid jigsaw had fallen into place the day before. My order recited the position as follows:

“The Father has a substantive funding certificate to cover all work undertaken to date and up to a final hearing in both the s.39 CA 1989 and s.21 ACA 2002 applications. The Official Solicitor will, in the usual manner, conduct an ongoing review as to the merits of the case and this may effect whether the funding certificate will remain in place.

The Mother has a substantive certificate to cover the period up to the exchange of final evidence in respect of both the s.39 CA 1989 and s.21 ACA 2002 applications, whereupon it will be subject to a merits review and report to the LAA which will determine whether the certificate will be extended to cover the final hearing.”

 

So it could be that if all of the professional evidence is against the parents, they will have no legal aid to have lawyers to challenge and test that evidence at a final hearing, although what is at stake is adoption.

 

The President has strong views about this (though note that parents routinely don’t get lawyers to help them on applications for leave to oppose the making of adoption orders, which also feels pretty shabby to me)

I have set out the parents’ legal aid position in paragraph 14 above. It will be noticed that there is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet. Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

 

The really sad thing about this case is encapsulated by the mother

  1. This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.
  2. I leave the last word to the mother, who, together with her husband, was present at the hearing on 2 December 2014 as at previous hearings. In an up-dating note dated 8 December 2014, her counsel, Ms Sarah Morgan QC and Ms Lucy Sprinz, said this:

    “The mother was distressed following the last hearing that the child had not, as far as she had heard it, even been mentioned during the course of the submissions and discussions between Counsel (including her own) and the Court. It doesn’t, she remarked afterwards, seem right that so much time has to be taken up about the legal aid when it should be about D.”

    They added, “Clearly she is right about that.” For my own part I merely pose this question: Is this really the best we can do?

 

Hear hear.

Equally, it can’t be a decent solution to this situation that we have to get a case before the President before the Legal Aid Agency will blink and see sense. He can’t hear all of them.

The annexe is shocking- it has taken nine months of wrangling to sort out legal aid for something that most people would assume was automatic.

I completely agree with the position of the ALC (Association of Lawyers for Children) and ADCS  (Association of Directors of Childrens Services)  – parents facing an application for a placement order should get non-means, non-merits public funding regardless of when the application takes place.

 

…the ALC makes these two assertions:

    1. “Section 10 of LASPO is not being implemented so as to provide the safety net for the most vulnerable.
    1. Placement orders in particular should be included in those proceedings for which non-means-tested and non-merits-tested public funding is provided.”
  1. I draw attention to two of the points made by the ADCS. The first is that:

    “From the perspective of a child on a journey to a permanent placement, ADCS would argue that the impact of a care order and a placement order are effectively equivalent; the same is true of their impact on the child’s parents. ADCS would therefore argue that equivalent checks and balances are required before either order is made. There appears to be no logic to support treating the orders differently simply because they have become decoupled in complex proceedings

    In this case it would appear to ADCS that the application of the current legal aid rules has led to an injustice and could create a detrimental impact on the child in question. We would agree with the court that the State has created a problem by introducing these rules and should therefore find a means of resolving the problem.”

     

    [For the benefit of pedants, yes, I know it is ‘squib’, but I like that particular eggcorn. Actually, this case isn’t quite as damp as it appeared when I first read it, because there’s a rap over the knuckles for LASPO here, although it doesn’t end up being the declaration of incompatibility that many were hoping for]

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if legal aid is being refused to people such as this mother I am satisfied that injustices will occur

This is a report of a short judgment from Her Honour Judge Hallam sitting in Middlesbrough, building on a decision from District Judge Reed in the same Court. Huge credit to both of them for calling out the Legal Aid Agency on this dreadful state of affairs   (the LAA in turn are just doing what they are told to do by our Lord  Chancellor)

 

Re H 2014

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B127.html

 

 

This was a private law case, between a mother and a father. The father had legal aid, because the child was known to social services and they were supporting him. The mother did not.   [One could make far more sense of it if it were the other way around – the father had a lesser need of representation because his case was being supported]

 

At a hearing in May 2014, the Court picked up that this mother was not someone who was going to be able to represent herself – there was an assessment of her cognitive abilities that assisted with that

 

She is not sufficiently disadvantaged to say that she does not have capacity to litigate. She has capacity to litigate but in my judgment that is only with the assistance of a solicitor. She has difficulties in hearing, in speech and intellectual difficulties. She is unable to read or write. They are not fanciful difficulties. In previous public law proceedings there has been a report from Dr Cooper, who is a psychologist, informing the court of the mother’s cognitive difficulties and learning difficulties. Having seen the mother in court, I am satisfied that she would not have been able to represent herself in a case as complex as this and therefore, in my judgment, she was, to all intents and purposes, prevented from having access to this court

 

 

At that hearing, D J Reed gave these directions

 

The matter came before District Judge Reed in May of this year, on 19th May. As I say, it was apparent at that stage that the mother opposed the father’s application. Furthermore, it was apparent that the local authority supported the father in his application. There was a recommendation about contact. When the matter came before District Judge Reed, the local authority, Middlesbrough Council, were made a party to the proceedings. At that stage the mother was self-representing and the judge was clearly concerned about that and there is a lengthy preamble to the order that he made in May. That preamble recorded that the attendance of GHu in court to support the mother was not appropriate, given the issue in the case. He recorded that:

 

 

 

‘In the absence of legal aid to secure representation of the mother, it is inevitable that her article 6 and her article 8 ECHR rights will be at risk of being violated, given her evident speech, hearing and learning difficulties, if the case proceeds without further representation.’

 

 

That could not have been a clearer indication of the judge’s opinion and consideration of this matter and therefore he also said that:

 

 

 

‘On its facts and having regard to the surrounding circumstances and, in particular, the recent party status of Middlesbrough local authority, the criteria for assessing an exceptional grant of legal aid are likely to be made out.’

 

 

He went further and said that the local authority involvement in the current proceedings is based largely on public law and child protection issues relating to the respondent mother’s fifth child, subject to public law proceedings which concluded in 2014, resulting in both care and placement orders. He said there is considerable similarity and overlap in the issues which present in both sets of proceedings. That part of the preamble continues with:

 

 

 

‘Furthermore, in the circumstances of this particular case and those of the respondent mother, it would be unrealistic and potentially unjust to expect the respondent mother to be a self-representing person.’

 

 

Therefore he adjourned what was to be a final hearing on that occasion in order for a further application to be made to the legal aid authorities.

 

 

You might think that you could not have a clearer indication (particularly in light of Q v Q) that the State would be breaching mother’s article 6 and article 8 human rights by not allowing her to have free legal representation.

 

You will, however, not be surprised to know that the Legal Aid Agency did not grant her exceptional funding under s10 LASPO. Of course they didn’t. As part of that decision, they considered that there was no risk of article 6 or article 8 breach. Of course they are in a far better position to assess that than the Judge who is seized of all the facts and knows the stakes. Of course they are.

 

The second matter that I am told that Mr Keegan relied upon was that there would be no breach of Convention rights. I find that statement astounding. A district judge had already found, having seen the mother, that undoubtedly her article 6 and article 8 rights would be breached. When I pause to consider the article 6 first of all, which is to ensure that people have fair trials in the courts of this country, and in order to do that should have equality of arms, I cannot see how anyone can come to the conclusion that this mother’s article 6 rights were not in jeopardy. I repeat again the father has the support of a legal representative. The local authority, who are advancing a case contrary to that of the mother’s, has legal representation. Without legal aid, therefore, the mother, on her own, would be facing two advocates pursuing a case against her. On any basis that cannot be equality of arms. She is the party with the least ability, the greatest vulnerability and she should have had the benefit of legal representation. She is faced with the father, who has the greater ability and the support of social services; as I say, both being legally represented. In effect, this vulnerable mother is faced with two advocates running a case against her and she does not even have one. I cannot think of a clearer breach of article 6. Article 8 – this matter is clearly about family life and the mother’s right to family life, whether the children should be in her care or not and what contact she should have. Again, I cannot see any conclusion other than that her article 8 rights were engaged, as the district judge said, in my view, properly, in the court below.

 

 

Fortunately for this woman, someone stepped in to represent her pro bono, but that doesn’t get away from the fact that we simply don’t have a system where s10 LASPO is the safety net that the MOJ claimed that it was when they were getting this awful legislation through Parliament.

 

If a Judge says that a person’s article 6 rights will be breached without representation, that’s a really really really good indicator that they would be. Judges don’t say these things for fun.

 

Ithas been fortunate that she has had the assistance of someone today because this matter has reached agreement. However, it is not right that legal professionals should have to attend a hearing, as complex as this one, without remuneration. The mother still has concerns about the father’s care for the children and many of those concerns are shared by the local authority, so she has not been running a fanciful case. The matter has resolved; it has resolved with an order and a very detailed working agreement. Again, I cannot see how this mother could have entered into that working agreement which has resolved this case without the assistance of Mr Nixon here to help her understand it, consider whether it was right and ultimately agree to it. Therefore, I have given this judgment because I am satisfied that this mother should have had legal aid and should have been represented. Mothers in her situation should have proper and full access to the court with the assistance of legal advice. As I have said, I am going to order a transcript of this judgment, both for the Legal Aid Board and also because I feel that it should be shown to the President of the Family Division to show what is happening in these courts. I am told that since April 2013 there have been only eight or nine cases where exceptional legal aid has been granted. I do not know if that is correct, but if legal aid is being refused to people such as this mother I am satisfied that injustices will occur. Had this matter proceeded without the assistance of Mr Nixon to a fully contested hearing, this court would have been put in an impossible situation. Having said that, I approve the order. I am grateful to everybody for the time they have spent and I am also, as I keep saying, very grateful to Mr Nixon for having attended today.

 

LASPO and article 6 – a huge case

The President has given his judgment in Q v Q, and it is a helluva read.

If you want the “Too Long: Didn’t Read” version – in a case where the Judge concludes that it is necessary for a party to be legally represented or to have the costs of an expert paid for and that failure to do so would be a breach of article 6, and the Legal Aid Agency refuse to use their power under s10 LASPO to grant exceptional funding,  the Court would be entitled to order that Her Majesty’s Court Service pay for the legal representation.

 

The original Q v Q I wrote about here :-  https://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/

 

The facts broadly are that a father was seeking contact with his child, an expert assessment as to future risk had been obtained, he disagreed with the conclusion and wanted to challenge it by way of cross-examination, but wasn’t in a position to do that himself, it was a task that would have been beyond him.  At the end of the judgment, the President floated the idea that if the Court considered that a party’s article 6 right to a fair trial was being breached, and the Legal Aid Agency wouldn’t pay for representation, then the Court Service might well have a duty to.  He didn’t finally determine that, giving the Ministry of Justice a chance to intervene and make representations as to why not  (they didn’t take that chance, because they are not the brightest crayon in the box)

 

The President also bundled up with Q v Q two private law cases where serious sexual offences were being alleged against the father and the Legal Aid Agency’s refusal to grant exceptional funding was going to place the Court in a position where the father might have to cross-examine in person the alleged victim. One of those,  D v K and B 2014   I wrote about here https://suesspiciousminds.com/2014/03/14/equality-of-arms-d-v-k-and-b-2014/

 

The judgment in Q vQ 2014 is here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html

 

I have not been, over the last few years, the biggest flag-waver for the President – many of my grumbles are about his performance as a reforming administrator rather than a Judge; but he delivers for justice here.  And puts a target on his head, because this won’t be a popular decision in the Ministry of Justice, who are probably in a room now with a flip chart drawing up battle-plans and watching old episodes of  Judge John Deed to try to pick up some tips for when the MOJ are at war with a ‘rogue’ Judge.

 

Let’s have a quick look at why the MOJ, when placed on notice that the President was contemplating making a decision that would in effect be – “either the LAA write a cheque or HMCS write a cheque, but a cheque’s going to get written”, decided not to get involved

I decided to invite the Secretary of State for Justice (para 20) to:
 

“intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.”
On 25 June 2014 I received a letter from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice. After an opening paragraph the letter reads as follows:
 

“I am very grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in this case.
Ministers have no right or power to intervene in individual legal aid funding decisions made by the Director of Legal Aid Casework. The independence of the Director is an important statutory measure, which ensures impartiality in decision making. From the information recorded in your judgment, it is clear that the father in this case failed to satisfy the statutory merits criteria required to access funding. The merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. It is clearly established that it is legitimate for the Government to focus limited public resources through applying a merits test.
As you record in your judgment, there is expert evidence in the case (one report plus addenda commissioned by the father and one plus addendum commissioned jointly by the mother and the father) which set out unequivocally that the son would not be safe in his father’s presence and that at the moment there should be no contact between the father and the son. There have always been litigants in person in family proceedings, whether because individuals do not qualify for legal aid or choose to represent themselves, and the Courts have been able to resolve such proceedings justly and fairly.
I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment.”

 

So, we’re not coming, and if you can’t find a lawyer to do the cross-examination for free, then you’ll just have to decide the case without any cross-examination.

 

Do you remember in 1984 how Orwell talks about the Ministries in Airstrip One being named for the opposite of what they really do? So their Ministry of Peace was really a Ministry of War and so on?   Ladies and Gentlemen, I give you the Ministry of Justice.  Bravo, bravo.

 

The President goes through the various options, looking chiefly at the cases involving an allegation of rape in private law proceedings which is challenged and where the ‘accused’ has no lawyer.  In short they are ‘pro bono’,  the Guardian conducting the cross-examination, the father doing it in person or the Judge doing it and shows why each are insufficient and flawed.

 

He then establishes that as a result of European jurisprudence, notably  Airey v Ireland, and the Human Rights Act, the Court itself is bound by article 6 and fair trial and would itself be breaching the person’s right to a fair trial if it were to conduct the trial in a way that it considers to be unjust

 

46. The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention. So far as is material for present purposes Article 6(1) provides that “In the determination of his civil rights and obligations … , everyone is entitled to a fair … hearing within a reasonable time”. Article 8, which guarantees “the right to respect for … private and family life”, also affords significant procedural safeguards in relation to the court process. As the Strasbourg court said in McMichael v UK (1995) 20 EHRR 205, para 87, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
 

47. It is necessary also to have regard to Article 47 of the European Charter of Fundamental Rights:
 

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”
I do not take up time considering whether this is applicable in cases such as those before me. In any event, it is not clear that it creates any greater right than arises under Articles 6 and 8 of the Convention: see Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin), paras 36-37.

48. Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24. In that particular case, the court held that Ireland was in breach of Mrs Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge would afford to parties acting in person. In DEB v Germany [2011] 2 CMLR 529, para 46, the CJEU summarised the Strasbourg jurisprudence in this way:
 

“Ruling on legal aid in the form of assistance by a lawyer, the ECtHR has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively.”

49. Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

The President also looked at section 31 G (6) of the  amended Matrimonial and Famly Proceedings Act 1984

 

33….section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
 

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

 

And in conclusion

 

75…does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.
 

76. The second thing which is unclear is this: what, in contrast to the word “put” in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J and Judge Wildblood said in the passages in their judgments (respectively, para 24 and paras 6(iii)-(v)) which I have already quoted.
 

77. The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are, as both Roderic Wood J and Judge Wildblood understandably pointed out, great difficulties in expecting the guardian or the guardian’s advocate to undertake this role – difficulties which were expounded also in the argument before me. I agree with what Judge Wildblood said (para 6(ix) quoted above). The point applies with equal force in the circumstances of both Re B and Re C.
 

78. What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?
 

79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

 

 

Now, some caveats  – the President is careful to say that these were cases with particular characteristics, each involving allegations of sexual offences and two involving allegations of rape, and that he had been looking at these cases in particular not s10 LASPO in general.   And also we need to bear in mind that  (a) the LAA might appeal this decision, as they are threatening to do with Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin),  and (b) hardly anyone at the LAA seems to have taken on board Gudanaviciene so far, as can be seen from the Smackdown judgment from HH Judge Bellamy I wrote about yesterday.     The criminal bar were all cock-a-hoop about the  Op Cotton judgment and the rug was pulled out from under them by the Court of Appeal.

 

Here are the President’s own caveats   (and if you are a Local Authority lawyer or budget-holder note the chilling implications of the LA funding intervenors or grandparents to litigate against them)

 

Three caveats

In this judgment I have been concerned only to consider the problems that may arise in private law cases. I have therefore not had occasion to consider any further the point I made in Q v Q (para 18), where I suggested that “In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay.” That is a matter for another day.
 

I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.
 

I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape. It may be that a similar approach is appropriate in cases of serious non-sexual assault. It may be that it will not be appropriate in less serious cases. I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.
 

Concluding observations

The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them. For my part I would urge the early attention of both the Children and Vulnerable Witnesses Working Group and the Family Procedure Rules Committee to those aspects of the various matters I have canvassed that fall within their respective remits.

 

In both of the live cases, the Judge gave the Legal Aid Agency one last chance to see sense and grant the funding under LASPO, but gave the clearest of indications that to proceed without representation would be an article 6 breach and that the Court would have to consider its own duty to fund such representation.

 

Q v Q – an impasse

 

You may not be aware (it depends if you spend too much time online), that on the internet QQ in effect means stop whining, or crying about something (the Q’s looking like a pair of eyes with tears coming out of them)   – if you say that someone is QQ-ing, it means that they are whining like a child about something.    [ it comes up a lot]

 

In Q v Q 2014, the President tackles what’s been a long-standing problem in family law proceedings, particularly family law. And brings tears to the eyes of the Legal Aid Agency, Her Majesty’s Court Service and our beloved minister Chris Grayling. QQ indeed.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html

 

For many years now, the Legal Aid Agency, under its various guises, has had a policy that they will withdraw public funding from someone who has legal aid (free legal representation) if there is an independent report which is heavily against them. Back when I was doing private law, this quite often used to be the CAFCASS report, and you’d end up in a position where your client’s legal aid would be pulled two days before a final hearing because the CAFCASS report was very damning.

 

Of course, the report is at that point untested evidence – for the Legal Aid Agency to presume that just because on paper the CAFCASS officer is against your client, there would be no prospect of getting them to change their mind or getting the Court to disagree with their conclusions is presumptuous in the extreme. If all the Court did was agree with what the CAFCASS report said on paper, then we wouldn’t need Judges at all, and CAFCASS could be the investigators and arbiters of final outcomes.   [Indeed, on a few such cases I recommended my client for free, and got a favourable decision for them]

 

That’s not a new thing, but in this case, the father was publicly funded and an expert was instructed (it was his expert) and the expert was heavily against him. His funding was pulled.

 

The father was therefore appearing in person, and requiring an interpreter. He wanted to be represented and he wanted to challenge the expert report. The mother, who was represented, invited the Court to dismiss his application and make a section 91(14) order prohibiting him from making further applications without leave of the Court.

 

The Court were unhappy about the impact of proceeding without representation for the father on his article 6 and article 8 rights, and mooted a series of possible solutions, before adjourning the case and inviting the Legal Aid Agency and Ministry to intervene to discuss those possible solutions.

 

 

In the circumstances, what I propose to do is this: I propose to adjourn this matter for, I emphasise, a short time, inviting the Ministry of Justice – or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid – to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.

 

 

I appreciate that this is a case in which, as Miss Spooner points out, there have already been too many adjournments of supposedly final hearings. I appreciate it is a case which has been going on for the best part of four years, which is depressing to say the least. And I am very conscious of the fact that the mere existence of the proceedings, and they must seem to the mother and her son to drag on interminably, is having a significant impact both on the mother and also on the parties’ son. Factoring that in as I do, it does seem to me that some further, but limited, delay is inescapable if I am to do justice not merely to the father but, as I have emphasised, also to the parents’ son.

 

 

I shall accordingly, in terms which I will draft, adjourn this matter so that the relevant ministry can intervene if it wishes to and on the basis that if it does not I will have to decide the issues I have canvassed without that assistance. I will reserve the matter to myself. I will direct that the hearing takes place as soon as it possibly can after the forthcoming short vacation. I would hope that the hearing can take place in front of me in June.

 

 

This is about nine years too late for the general principle, and a year late for the LASPO position which left almost all parents in private law cases unrepresented (I suspect that the father’s rights movements would also say that as a result of relative incomes, there were a huge number of cases in which fathers had to represent themselves because they had slightly too much money for legal aid representation but not nearly enough to pay privately, and I have some sympathy with that position)

 

It is welcome anyway, even if it is late.

 

The President helpfully gives people a valuable little crib-sheet in case they WERE asking the Legal Aid Agency to grant legal aid in the s10 LASPO exceptional circumstances

 

Putting it in the language of FPR 2010 1.1, the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

 

As I have said, the domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing. In the well-known case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights held as long ago as 1979 that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. In that particular case, the court held that Ireland was in breach of Mrs. Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge affords to parties acting in person.

 

 

Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, a judgment given by the court in March 1997, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

I mention those cases merely as illustrative of the kind of issues which arise in this kind of situation. I emphasise I do so without expressing any view at all as to whether, in the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.

 

 

 

You may have noticed that I haven’t come on to the facts of the case yet, which is not my usual approach. You may be wondering what the facts of this case are that led to the President being so troubled about the father’s human rights (especially given that there was no such intervention on the D v K case where a father was accused of rape by the mother in private law proceedings and not given legal aid, leaving him in the position of facing those very serious allegations without a lawyer and the mother in the position of being cross-examined by the father directly, something which would be illegal if it happened in a criminal trial http://www.bailii.org/ew/cases/EWHC/Fam/2014/700.html   So it must be something worse than that?)

 

 

Well, this, I’m afraid is one that the Daily Mail would exhaust the entireity of the “Outrage” section of Roget’s Thesaurus

 

The father is a convicted sex offender, having convictions for sexual offences with young male children, the second of which was committed during the currency of these proceedings.

 

 

That’s right – the man who the President has gone to the wall for, to defend his human rights, to single out and say “This is the case where I must defend the father’s rights” is a convicted paedophile seeking to have contact with his seven year old son.

 

[That, sadly, is the point of human rights, that they are universal and apply to the most deserving and those who the general public might regard as undeserving and beyond the pale. It isn’t great PR for those who support human rights – including myself, when it is cases like this that stir our courts into upholding rights. It does seem from time to time that the more unsavoury you appear to be, the more thought the Court give to your rights. I hope it only seems that way.

 

If you were to hold a national referendum on whether this man, a convicted paedophile, should get to see his seven year old son, I don’t imagine that it would be a finely balanced result. I don’t think bookmakers would be giving very good odds on “No” ]

 

 

 

 

Back to the legal debate, the President felt that just because the report was against the father that would not determine the matter

 

Tempting though it is to think that the father’s case is totally lacking in merit, it does seem to me, despite everything Miss Spooner has said, and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

 

For example, a perfectly proper line of cross-examination of JD might be along these lines, “In part at least, your analysis of the risks that the father poses to his son, as opposed to other children, is based upon the account you have had from the mother of what went on in the family home.” It would seem, bearing in mind the language of JD’s report, that the answer could only be, “Yes.” The next question then might be, “Suppose for the sake of argument that the true picture at home was not what the mother says but a very different picture presented by the father. Just suppose that. Would that affect your opinion?” I use that only by way of illustration of a wider point that could be made in relation to these reports. That seems to me to be a proper and appropriate line of cross-examination.

 

 

My problem and ultimately Miss Spooner’s problem is that it is completely a matter of speculation as to what JD’s answer would be to the last question I formulated. The answer might be, “It does not make the slightest difference at all because of X, Y, Z”, in which case the father’s case might evaporate. It might be, “Well, yes, that might make a difference.” The point is we simply do not know

 

 

 

[If you are thinking at this point – well all of that seems like it could apply to ANY witness who was against you, and thus ANY case –mmmmm, yes, I agree. This could be a very critical case for the Government and LASPO. If they don’t take it seriously, it could put a serious hole in their policy about legal aid]

 

 

What were the Court’s possible options to resolve this unthinkable impasse?

 

Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father’s representation

 

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public fundsThere may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.

It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

 

 

May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child

 

 

 

 

If you have ever watched a submarine movie (and if you haven’t, you have wasted your life to date), you will be familiar with the sequence where disaster strikes, water breaches the hull and red lights go on and a siren blasts “Arooogah Aroogah” for the next twenty minutes of the film, where men in crewneck jumpers and/or bellbottoms use wrenches on pipes and doors burst open and water pours in.

 

That submarine disaster sequence is  pretty much what the scene at Her Majesty’s Court Service would be like when they read this line from the President

 

 

. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters

 

 

What the President is saying there is, if a situation arises in which a party’s human rights would be breached by having to conduct litigation without a lawyer and the Legal Aid Agency won’t pay, it might have to come out of the Court’s budget, otherwise the Court would be breaching the party’s human rights.

 

Aroogah! Aroogah!

 

 

In private law, if someone is going to have to pay for legal representation to prevent a breach of article 6 and article 8, the options are basically limited to the Legal Aid Agency or the Court (either way, it is coming out of Mr Grayling’s budget)

 

Aroogah! Aroogah!

 

Luckily, we know from Mr Grayling’s comments about the completely opaque terrorism trial of AB and CD that “We must trust the Judges” and on that basis, I’m sure that Mr Grayling will stand by that, and not bring a Silk along to talk the President out of it, or appeal any decision that the President might make.

 

And also note that the President drags the poor old Local Authority into this, despite being a private law case that they aren’t involved in.

 

In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay

 

 

It is wrong, and probably a contempt of Court for me to refer to the President of the Family Division as Dude – so let’s for a moment imagine that I am talking about someone entirely different  (which I am, I am addressing a friend of mine who has just made this very suggestion, in coincidentally the same words that the President used), but

 

Dude !

 

Are you saying that if a child has a fractured skull, and the suspects are mother and mother’s boyfriend, and mother’s boyfriend can’t get legal aid, the Local Authority should pay for the boyfriend’s lawyers to fight the case against them? That it would be fine for those lawyers to be paid by the applicant in the proceedings, who is running a case directly in opposition to their client?

 

Dude!

 

 

[I think in the light of Re T, we’d see what the Supreme Court thought about that. The answer it seems to me, is that we need our Courts to unlock s10 LASPO exceptions by saying that these cases would be an article 6 breach in accordance with the spirit of Airey v Ireland, and it would be Wednesbury unreasonable for the Legal Aid Agency to decide otherwise once a judge has ruled that there would be an article 6 breach. IF that is the path that the President goes down, it seems to me to have the potential to punch a big hole in the hull of HMS LASPO – it is lucky that Mr Grayling trusts the Judges]

 

 

 

“The peril of Auntie Beryl”

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   – not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section  31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long- term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other  member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

Transformers…. Cutting robots in disguise

One might have thought that in the week that LASPO kicked in, with huge chunks of areas of legal representation being taken out of the legal aid system, the Government might let those lawyers who survived and are still reeling have a little bit of respite.

 You fools! Of course not. Following some sort of Sun Tzu Art of War philosophy, the Government have decided that the best time to kick people is when they are down.

 Hence

 “Transforming Legal Aid” – a new consultation     (and we all know how ‘consultation’ works)

 https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

Here’s the waffle

 

6.6 Progress is currently being made to reduce the average duration of care cases through the implementation of the Family Justice Review reforms90 which should have the effect of reducing the unit cost of cases by tackling delay and streamlining cases, for example through reducing the use of experts.91 The national average duration of care cases has already reduced from around 54 weeks to around 45 weeks.92 The aim is to achieve an average of 26 weeks in all but exceptional cases, and this time limit will be enshrined in statute subject to parliamentary approval of the Children and Families Bill.93 Associated efficiencies in court proceedings are planned in support of this time limit. For example, the recent introduction of a new Part 25 of the Family Procedure Rules in January 2013 which requires the court to restrict expert evidence to those circumstances where it is necessary to assist court proceedings. This requirement will also be enshrined in statue through the Children and Families Bill94 which, subject to Parliamentary approval, is expected to receive Royal Assent next year. In reducing the commissioning of unnecessary expert reports, this requirement should also reduce the related work for solicitors. It is also expected that further efficiencies currently under development might also reduce the average number of hearings required in a case.

 

6.7 As the fee paid to solicitors for their work on a case is fixed, the cost of dealing with fewer experts or fewer hearings would not automatically adjust to reflect the likely reduction in the work required of solicitors (whereas any reduction in the number of hearings would lead automatically to a reduction in advocacy costs, as these are calculated on the basis of hearing fees). We consider that the legal aid fee paid for these proceedings should represent value for money and therefore reflect more closely the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.

 

That’s all very long – what do they mean?

 Well, now that care proceedings will be only lasting twenty six weeks (which, I hasten to remind everyone is a PROPOSAL which has not even been discussed by Parliament), that will mean less work has to be done by the lawyers, so we should pay them less.

 How much less?

 Ten per cent.

 

[Never mind that we don’t actually know yet the structure that would allow care cases to be concluded within 26 weeks, or that as I pointed out yesterday, NINE YEARS of striving to get care proceedings concluded within 40 weeks has resulted in more local authorities having an average length of proceedings ABOVE 60 weeks than BELOW 40, so there is no way of knowing whether a lawyer would be doing more or less work, or whether the aspirations for 26 weeks are going to be any more effective than the last nine years of targets]

6.10 We propose to reduce the representation fee paid to solicitors in public family law cases by 10%. We consider that this is a reasonable reflection of the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.

 6.11 This proposed reduction would apply to the current fixed fees under the Scheme. In addition, to promote efficient resolution of cases and avoid creating any incentive to delay, it would apply to the hourly rates that are payable where a case reaches the escape threshold.

 

And experts?

 Waffle time

 7.9 The current codified rates were introduced in October 2011. Prior to that time, there were no set rates for expert services, generally, and therefore little effective control over their cost. Instead, contracted legal aid solicitors, who remain responsible for engaging relevant experts as and when necessary, would bill the then LSC after the service had been provided and paid for, based on the fee requested by the individual expert in the particular case. The initial codification of expert rates therefore represented a necessary first step in providing clarity and control over spend on experts, while continuing to ensure access to necessary expert services as and when required.

 

 Upshot?  Fees to experts to be cut by 20 per cent

 I know that this blog is read by people who aren’t lawyers, and aren’t experts, and they may well be thinking – good, cut the costs of these fat cats. That’s certainly the Daily Mail take on it  (a good rule of thumb in life, I find, is where you find yourself agreeing with the Daily Mail take on anything, you probably need to take a hard look at either yourself or the facts)

 The reality is that if you cut the income of a group of professionals by 10% one year and 10% the next (lawyers) or 20% in one fell swoop (experts), then some of them will go under. That means less choice, less availability, more delay, less chance that the parents who need them will be able to get them.

 The ones that do keep going will be forced to do more work for less money, which means spending less time on each case.  If we want the best chance of proper justice for families, the lawyers instructed by parents need to have the ability to give the proper time that it takes to prepare a case, to form a proper meaningful relationship with the parent so that there is understanding on both sides and to give advice that is based on that solid understanding of both the facts and the people.

 And if you think this is the end of the cuts, you’d be mistaken. If the Government manage to push through removing huge swathes of free legal advice, and cut the income of those who are left by 20% in two years, they will be back again for another cut in 2014, 2015 until there is nothing left to cut. [Ideally perhaps to the point where solicitors doing family law will pay the Government for each case they take on]

 Consultation responses to this new document are due by June 2013 – the response details are on the link I started with.  I found myself seriously pondering Edmund Burke’s words when thinking about this.

Decepticon is such an ugly word, I prefer Consultatron

Our new Minister for Justice,  the Rt Honourable Mr Megatron, reporting for Efficiency Saving duty. Tremble before him