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Experts and fairness

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW   subheading.  The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

 

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with.  Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary.  This was appealed to a circuit Judge, who upheld the decision.

 

As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

 

Some very quick practice points:-

 

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should  ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

 

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

 

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

 

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

  1. A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

    Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

    A “But that is wrong”.

    Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.

  2. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

 

AND

  1. The written reasons for the decision given by the magistrates are as follows:

    “We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.

  2. That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked.  Therefore, a properly formulated Part 25 application is essential  (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

 

NEW

5. Protection for litigants in person

 

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

  1. I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
  2. The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
  3. This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

 

 

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

 

  1. This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
  2. In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

 

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Ignorance of the procedure is no excuse

 

It’s a well-worn phrase that ignorance of the law is no excuse, but now we have the Court of Appeal confirming that if a parent is having to construct their appeal in person without the benefit of legal representation, it is not an excuse for procedural flaws.

Re D (Children) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/409.html

 

In this case, which was an appeal by the Local Authority arising from the parents successful appeal to His Honour Judge Plunkett who overturned a Care Order and Placement Order in relation to their youngest child, those orders having been made by a District Judge Maughan.

The bare facts of the case are quite simple. The parents had five children (now six) and the four oldest children had made serious allegations of physical abuse by the parents. Care proceedings began and all five children were removed and placed in care. The older children, ranging in ages from fifteen to twelve had “Voted with their feet” and returned to the parents care by the time the Court came to make final orders. Those four children were made subject to Supervision Orders.  The youngest was made the subject of a Care Order and Placement Order (hence adoption being the plan)

A year later, the parents made an application to revoke the Placement Order. His Honour Judge Plunkett, looking at the case decided that what they really intended to do was to appeal against the order.  They had no lawyers and they never actually lodged grounds for appeal or a formal application.

 

His Honour Judge Plunkett had been understanding about this. The fundamental issues for the appeal were that the older children had substantially retracted their allegations (was this fresh evidence?) and also that the District Judge had not given a judgment about why the older children had not been called to give evidence.

There ought to have been a three stage process here

1. Should the parents be able to appeal out of time, it being a year after the order

2. Should they have permission to appeal

3. Determination of the appeal

In the event, because of the blurred nature of the hearing, the LA and Guardian had thought that the Judge was considering part 2 only, but the Judge had considered that he was determining the appeal itself, and he set aside the Care Order and Placement Order and directed a re-hearing.

 

There are a few important issues that this raises. The first is the headline – to what extent does or should a Court grant leeway to failures in technical or procedural matters because parents (who would have wanted lawyers but couldn’t have them because of legal aid rules) were inexperienced and unknowledgeable about the process?

  1. Although the parents were acting as litigants in person when they instigated the process that became the appeal in L’s case, and some procedural latitude may be justified to accommodate such a litigant, the appeal procedure established by FPR, Part 30 is neither complicated nor onerous. It simply requires pleaded grounds of appeal, permission to appeal granted on stated grounds followed by the determination of the appeal on those grounds at a hearing. A substantial (and therefore impermissible) departure from the Part 30 requirements may well establish a situation in which one or more of the parties is denied a fair hearing.
  2. In relation to the appeal in L’s case, the process adopted by HHJ Plunkett did not come close to that which is required by FPR 2010, Part 30. The D11 Notice filed by the parents did not contain any grounds of appeal, other than the bare assertion that the children had retracted allegations. The Notice was stated to be challenging the judge’s decision regarding L’s adoption and the judge’s refusal to allow the parents to apply to revoke the placement order (ie the 2014 determinations) whereas the judge moved on to allow an appeal against the order made on the 2013 fact-finding hearing. Other than to note the point, at no stage did the judge engage with the fact that this un-pleaded ‘appeal’ was over a year out of time. The grounds upon which the judge eventually came to allow the appeal emerged in the process of free flowing to-and-fro communication between the judge and counsel during the hearing on 21st November.

 

(Given that I have encountered many family lawyers who have no idea of the Ladd v Marshall test for fresh evidence on appeal, I think the Court of Appeal rather overstate the simplicity of the appeal process here…)

  1. At this stage in my judgment it is right to stress the very clear view that I have formed from reading the transcript of the hearing of the 21st November which is that all parties, but particularly the judge, were motivated by the best of intentions. The discourse between all three counsel and the judge demonstrates a cooperative and sensible approach which was initially designed to assist the judge in absorbing the background detail of the case. This laudable spirit of positive cooperation between Bar and Bench should rightly attract praise, particularly in the context of a family case, but the manner in which this process was allowed to develop and then occupy the entirety of what the judge apparently considered was the hearing of the full appeal must inevitably also attract criticism in this case. The discourse between counsel and the court, which ran throughout the 21st November hearing, lacked any structure in the context of an appeal. No grounds of appeal were ever properly identified. The judge did not receive any submissions from any of the parties (even the appellant parents) on the topic that he went on to identify in his judgment as the main ground of appeal. There was no clarity, indeed there was clear confusion, as to the stage that the proceedings had reached and whether the court was considering permission to appeal or the appeal itself.
  2. Although litigants in person as applicants for permission to appeal have always been a feature of appellate justice, in modern times in family cases the litigant in person applicant has become the norm. Circuit judges, High Court judges and Lords Justices of Appeal are regularly required to process and analyse applications for permission to appeal in family cases by litigants in person. Such applications inevitably lack the forensic focus and legal analysis that would be commonplace if the application were made by a lawyer. There is, however, a danger that the judge may become drawn into the process of analysing the case to see if there is some thus far un-noticed and un-pleaded merit in a potential appeal that he loses sight of the structure of the appeal process and his or her role within that structure. It is my view that that danger became a reality in the present case. In seeking to unpick the process in the lower tribunal in order to identify whether matters had gone awry there, the judge presided over a process which, in the end, was neither fair nor effective.
  3. I have already described the appeal procedure established by FPR 2010, Part 30 as neither complicated nor onerous. Part 30 is similar in structure to CPR 1998, Part 52 which governs civil appeals to the Court of Appeal. It is a statutory requirement that family appeals in the family court or the High Court are conducted by adherence to the Part 30 provisions [FPR 2010, r 2.1]. The short and trite point therefore is that appellate judges hearing an appeal in the family court are bound to apply the provisions of Part 30. I would, however, go further and hold that, rule or not, utilisation of the simple structure of Part 30 is likely to assist the parties and the judge to process a challenge to a first instance decision in an effective and straight-forward manner. The three core elementsgrounds of appeal, permission to appeal and appeal hearing – should enable all involved the proceedings to know with clarity what the issues are and what stage the process has reached at any particular time.
  4. Adherence to the requirements for the appeal notice to state the grounds of appeal [FPR, r 30.6] and for there to be no amendment of an appeal notice without the permission of the court [FPR, r 30.9], rather than being arid and empty procedural stipulations, provide both flexibility and clarity to enable the basis of an appeal to develop (as was the case on 21st November before HHJ Plunkett in the present case) but, at the same time, ensure that at each stage all those involved know what is, and what is not, a live issue that falls to be addressed within the appeal. If permission to appeal is granted on a basis outside the pleaded grounds, then those grounds should be amended by permission under r 30.9 and the appeal can proceed with all parties fully aware of the situation.
  5. In R (Dinjan Hysaj) v The Home Secretary [2014] EWCA Civ 1633 my Lord, Moore-Bick LJ, giving the main judgment in a combined appeal relating to applications for extensions of time under the Civil Procedure Rules, Part 52 (relating to appeals), considered whether or not the requirements of the rules fell to be applied differently where the party concerned was acting as a litigant in person. At paragraph 44, my Lord said this:

    “The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. …. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.’

    That approach, with which I am in full agreement, must apply to family appeals just as it does to all other forms of civil appeal.

  6. The fact that an applicant for permission to appeal is a litigant in person may cause a judge to spend more time explaining the process and the requirements, but that fact is not, and should not be, a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules. Indeed, as I have suggested, adherence to the rules should be seen as a benefit to all parties, including litigants in person, rather than an impediment. Ensuring that a litigant in person’s appeal is established in a manner which is compatible with the rules, that the grounds of appeal are accurately drawn to include the points that the court is going to be asked to consider on the permission application and that all parties know what stage in the process the application has reached, are steps that are each likely to support, rather than hinder, the litigant in person in their interaction with the court and the other parties.
  7. It would, thus, have been perfectly straightforward for HHJ Plunkett to ensure that the Notices of Appeal were amended once he had become sufficiently concerned to consider that an appeal might succeed (a) against the 2013 decision, which was not a pleaded target of the Notice of Appeal, and (b) upon a basis outside the currently pleaded grounds of appeal. The failure of the judge to ensure that the pleadings kept pace with his developing thoughts, much more than simply being a slip in sticking to the rules, led in this case to a process which was unclear and unfair to the parties and gave rise to genuine confusion (as evidenced by the supplemental submission filed by the local authority and the guardian).

 

It was this somewhat blurred process that led to everyone neglecting the first stage of the process – should these parents be allowed to make an application to appeal out of time, the order in question having been made a year earlier?

  1. The lack of due process also caused the judge to by-pass the need to consider whether or not to extend time to permit an appeal against the fact-finding decision nearly 12 months prior to DJ Maughan deeming the parents’ application to be an application for permission to appeal. In the present case the parents had been legally represented at the fact-finding hearing, yet the issue of calling any of the children to give oral evidence had not been raised with the district judge and it was not, apparently, considered to be a matter to be brought on appeal immediately following the fact finding hearing. The question of whether the parents should be given an extension of time a year later to bring the point by way of appeal therefore plainly arose. In the absence of a process that required the parents’ appeals on this point to be properly pleaded, the issue of an extension of time, it would seem, never sufficiently crystallised so that it was addressed by the parties or the judge.

 

The issue that had really tipped the appeal before His Honour Judge Plunkett was his view that where the allegations were made by children, it was incumbent on the Court to raise and consider whether they should be called as witnesses. None of the parties had ever asked the Court to call the children or asked for a ruling, but His Honour Judge Plunkett considered that there was a duty on the Court to do so, whether or not it had been expressly raised.

This is a very important point, and His Honour Judge Plunkett set it out in this way:-

The judge’s reasoning on the issue of the potential for one or more of the children to be called to give oral evidence is clear and shortly stated:

i) Where, as here, the threshold facts relate entirely to complaints from the children, ‘any court … is obliged to consider whether children should give evidence’;

ii) This is not dependent upon a party making a specific application for oral evidence, the court is obliged to make such a determination and to record it;

iii) There is no record of the district judge having made any determination on the issue;

iv) If the district judge did not consider oral evidence from the children then the hearing is unlikely to have been Article 6 compliant;

v) In the alternative, the district judge in any event failed to analyse her approach to the hearsay nature of the children’s complaints.

 

The Court of Appeal agreed with His Honour Judge Plunkett that the issue of the children’s evidence was important, and even perhaps that it would be good practice for a Judge to consider it even if the parties had not made such application. Where they disagreed was that a Judge who did not do so had erred in law and that a failure to examine matters of their own motion would be a basis for an appeal.

  1. I am entirely at one with the judge in identifying the potential importance of the issue of children giving oral evidence in a case such as this. A judge who adopted the practice that he describes would be beyond reproach and would have demonstrated a sound and sensible approach to the evidence. Where I differ from the judge is in his elevation of this aspect of good practice to a free-standing obligation upon the court, breach of which establishes, almost of itself, that the whole fact finding hearing was conducted in breach of Article 6.
  2. No authority, either domestic or ECHR, is cited for this principle. The judgment of the Supreme Court in Re W describes how the task of evaluation is to be undertaken, but their Lordships do not state that such an evaluation is a requirement in every case where key evidence arises from a child or young person. The nearest that the judgments in Re W come to the point is at paragraph 31 in the judgment of Baroness Hale SCJ:

    ‘Finally, we would indorse the suggestion made by Miss Branigan QC for the child’s guardian, that the issue should be addressed at the case management conference in care proceedings or at the earliest directions hearing in private law proceedings. It should not be left to the party to raise. This is not, however, an invitation to elaborate consideration of what will usually be a non-issue.’

    My reading of that paragraph is that it is no more than an endorsement of counsel’s suggestion of good practice; it does not establish a legal obligation in every case, breach of which will, or is likely to, render the whole proceedings unfair. Such an approach is also in line with the observation of Black LJ in Re B (Child Evidence) [2014] EWCA Civ 1015 at paragraph 29:

    ‘The Supreme Court [in Re W] did not consider that their decision would lead to children routinely giving evidence, predicting that the outcome of the court’s balancing exercise, if it was called upon to adjudicate upon such matters, would be a conclusion that the additional benefits in calling the child would not outweigh the additional harm it would cause him or her.’ [emphasis added]

  3. For my part I consider that the judge has overstated the position and has done so without the support of any authority. Whilst the approach taken by the district judge to the children’s complaints must fall to be considered as part of an analysis of the proceedings as a whole in the context of any fresh appeal, this one aspect, taken in isolation, did not of itself establish a breach of Article 6 as a matter of law and justify allowing the appeal on that ground alone.

 

For my part, I can see the ambiguity on this point, and I can see why His Honour Judge Plunkett considered that the failure by the DJ to explicitly consider whether the case could be properly resolved without the children’s evidence and whether for article 6 purposes the children should have been called (or at least weighed up those issues) was a fatal one.

However, this is now cleared up by the Court of Appeal. There isn’t a requirement on the Court to consider whether the children should give evidence UNLESS they are invited to do so.

I do wonder, having never met either His Honour Judge Plunkett * or District Judge Maughan, how the judicial tea and biscuits have gone down in Birmingham.  I am imagining DJ Maughan stretching casually and remarking “Oh, I see on that case where you overturned me and said I’d got the law wrong, it turns out it was you who had got the law wrong”

(I’m sure that hasn’t happened and that all involved are much more grown up than I would be in those circumstances. Reading this, I think it a bit Schroedinger’s Cat again – I think both of them wre sort of right and capable of being right, and it was only when the Court of Appeal explictly ruled on it that either of them became right or wrong)

 

*It is possible that I have met HH J Plunkett whilst he was at the bar, but as I don’t know his forename, I could not now say either way.

 

The Court of Appeal allowed the appeal and sent the matter back for re-hearing. It is a good job that this was Birmingham and not one of the smaller Courts in the country, because a smaller Court might have been running out of judges to hear the case.

“You’re fired! Now, can I have an adjournment?”

We seem to have had a recent flurry of Court of Appeal decisions about whether it is fair to press on with a final hearing where a parent parts company with their lawyer shortly before the hearing, or even in the midst of it.

This is an interesting dilemma, since obviously there’s a tension between wanting a fair trial and recognising that a parent who suddenly finds that they are representing themselves at the eleventh hour has more than they can realistically cope with, and having decisions made in accordance with the timetable the Court has fixed for the case (that being based on what the child’s timescales are)

On the one hand, it is important that parents who face the prospect of permanent separation from their child (a) HAVE a lawyer and (b) HAVE CONFIDENCE in that lawyer; on the other, if simply sacking your lawyer gets the hearing adjourned, then it would always be better to simply sack your lawyer at the morning of the first day, rather than INSTRUCT your lawyer to argue for an adjournment.

 [Also, if not having a lawyer gets you an adjournment, you can infinitely prolong the decision by sacking your lawyer every time you reach the final hearing, so there has to be a line drawn in the sand somewhere]

 alan sugar

There are two recent cases, with two different outcomes

Re L (A Child) 2013, where the decision to refuse an adjournment was overturned

http://www.bailii.org/ew/cases/EWCA/Civ/2013/267.html

Re GB (Children) 2013, where the refusal of the adjournment was approved.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/164.html

 So, in brief summary, the facts of the two cases :-

 In Re L, the father was having considerable difficulties with his solicitors and things reached the point where they indicated that they were no longer willing to act for him. This happened on the Friday, with the final hearing due to start on the Tuesday. His solicitors conveyed the full set of papers to him on Monday, but he was not at home, having had to set off to make the journey to the town in which the final hearing was to take place.

 The father had sought an adjournment, as although he was ‘wedded to not wanting to return to his previous solicitors, he was also wedded to having legal representation’ and was not seeking to represent himself.

Additionally, and pivotally, there was also a report from a psychiatrist, Dr Bowskill  (this having been a piece of information which caused quite a lot of the disruption between father and his solicitors) and was not presented at the initial final hearing, but was presented to the Court of Appeal.

 

  1. We have what the judge did not have, namely a letter from Dr Bowskill dated 6 September, in which he states shortly but pertinently:

“I have assessed Mr LL and confirm that my opinion is that he is not fit to represent himself in court.”

Beyond that, we have a full medico-legal report from Dr Bowskill dated on its face 20th, but actually signed and dated by the doctor 27 September 2012. What is important is paragraph 7.1, in which the doctor states:

“My opinion is that Mr LL has a Paranoid Personality Disorder, as defined in Section F60.0 in the International Classification of Mental and Behavioural Disorders, Version 10.”

Then in paragraph 7.10 and 11, he states:

“7.10 Given Mr LL’s Paranoid Personality Disorder, I do not believe Mr LL would be able to represent himself in a useful way in the court process. Judge Compston made his findings without being aware of Mr LL’s Paranoid Personality Disorder.

7.11 My opinion is that the degree of Mr LL’s personality disorder is that he would not be able to rationally respond to and address questions that would be posed to him during the Court process. Indeed, the Court process is likely to exacerbate his feeling of paranoia and persecution.”

 For the Court of Appeal, that tipped the balance –underlining mine

I would not myself conclude that the judge’s decision on 14 August and 15 August fell without the very generous ambit of discretion given to a judge who has to balance on the one hand possible unfairness to the applicant, on the other hand unfairness to the respondent in granting the application, to which must be added the all-important welfare dimension taking into account the interests of the child. Finally, there is the general point of public importance that public funding resources need to be husbanded. A transfer from firm A to firm B usually involves wastage and therefore increase in the ultimate bill to the public purse. And always, there is the risk of delay inherent in granting any adjournment and the additional pressure on the limited resources of the court in filling the time vacated and finding matching time elsewhere.

However, the importance of the fresh evidence must, in my judgment, be recognised. Had that information been available to the Recorder, had he had the letter of 6 September and even more the medico-legal report, he would have recognised that he had before him a vulnerable applicant, disadvantaged as a result of his disorder and one who in the opinion of an expert was simply not fit to litigate unrepresented. Accordingly, if he had available to him information available to this court, it is at the least arguable that he would have reached the contrary decision. Indeed, in my view had he had that material, the application required to be granted, at least to give the applicant a limited opportunity to ensure that the certificate was not lost, but transferred to an alternative firm, who would then simply have the relatively light task of picking up the trial from the point at which all the documentation had been prepared. And Mr Maitland Jones, who had only been stood down from his brief to represent on the 14th, would have been available to be briefed on some other day.

 

 

In Re GB, it seems that the parents lost confidence in their legal team shortly after the Issues Resolution Hearing  (a hearing at which their position was confirmed as being that that parents accepted that the 3 children would not be returning to their care, and that the time estimate for the final hearing was reduced by agreement from 5 days to 2),  but did not obtain fresh representation between the IRH and final hearing and had not taken any steps to do that.

They dismissed their legal representation and sought an adjournment to obtain fresh legal representation, which was refused, and thus found themselves in the position of being litigants in person. [Again the underlining is my own, for emphasis]

  1. Ms Sterling’s case before us today sought to highlight a number of aspects. First of all, the mother’s vulnerability before the court. In doing so, we were handed one page from what is obviously a lengthy report prepared by Mrs Westerman, a clinical psychologist who conducted an assessment of the mother. The page that we have sets out three paragraphs listing the outcome of a number of psychological tests that were undertaken. These indicated that the mother had an elevated score in a number of aspects, in particular in one test on the “paranoid scale of the severe personality pathology scale”. Another result indicated the presence of “depressive and masochistic personality traits”; and, generally, Ms Sterling submitted that these results established or at least strongly indicated that her client was a significantly vulnerable individual and not well fitted, or fitted at all, to be either a litigant in person in any proceedings or, more forcefully, the litigant in person in these proceedings in relation to her own history, her own functioning as a parent and the future of her own children.
  1. Ms Sterling also took us to no less than four occasions in the judgment where the judge either herself expressed the view, or quoted the view of professionals, that the mother lacked “insight” into the difficulties that were being raised against her in the proceedings. Ms Sterling also pointed out that this mother had herself had a very troubled time as a young person in the care system.
  1. As part of the task facing the mother at the hearing, she was required to cross-examine the psychologist who had produced this comprehensive report. Ms Sterling said in terms that it was just wrong for a person such as this mother to be required to cross-examine a psychologist in these circumstances. She said that for the judge to have established a trial where this took place was unfair, unjust and unkind.
  1. In support of the second ground of appeal, Ms Sterling having taken us in her detailed skeleton and in her oral submissions to other matters, stressed that the judgment of the court does not simply deliver the task of deciding what should happen to the three children before the judge in November 2011, it also has an impact upon any future child that this mother might have, because it would be taken as the starting point and given credence by the local authority in deciding whether the mother could be a safe or good enough parent for any future child. The submission was made that there was no urgency in the proceedings before the judge, that there was benefit in time being taken to allow for legal representation; the children were not going to be moving, and indeed have not moved, from the places that they were already established in at the time of the hearing and the judge should have given the mother the adjournment that she sought.
  1. Finally Ms Sterling took us to the detail of the task that the mother faced in conducting the hearing. She described it as a herculean task, not least because of the physical burden of the mother carrying the six or seven bundles of paperwork away with her for the first time from court at the end of the first day, travelling on public transport back to her home, reading them as best she could overnight and returning to court for the 9.30 start on the next morning.
  1. Ms Sterling also said that a reading of the transcript showed that to pack so much into the day and for the judge to hold, as she did at the beginning of the first day, that the hearing would finish “tomorrow” was to put too much pressure on the mother and led to the court driving the case forward at an unacceptable pace during the course of the second day.
  1. I asked Ms Sterling whether any criticism was made of the approach the judge took once the hearing had begun, other than the pace of the process, and to that request Ms Sterling indicated that the way in which the judge simply allowed the mother to ask very long narrative questions of the witnesses was in fact a detriment to the mother; it allowed her, to use Ms Sterling’s phrase, “to rant” in an unfocussed manner which almost became self-defeating of the mother trying to present a positive and wholesome picture to the judge

The Court of Appeal in both cases referred back to Re B and T (care proceedings: legal representation) [2001] 1 FCR 512 and cited the general principles about an adjournment application where the parents had become unrepresented [underlining mine]

 

  1. 45.   “17. The assertion by Mr Miss Booth that art 6 obliged the judge to discontinue on either 12 June or, if not then, on 14 June, seems to me to be an unrealistic submission. In this jurisdiction the proceedings are not adversarial proceedings. The judge always holds an inquisitorial responsibility, It is his difficult task to maintain a balance between the rights of the children to an early determination of their future. The obligation of the judge to avoid delay is expressed in the statute. I cannot see that it could be said that this judge, supremely experienced in this field of work, fell into error in balancing the rights of the children to determination against the rights of the parents to a fair trial. It is not a case in which the parents were denied the opportunity to put their case. It is manifest that the judge endeavoured, to the best of his ability, to ensure that the received the support which is conventionally given by a judge and advocates to unrepresented litigants.

[…]

21. When one considers the requirements of art 6 of the Convention, it is relevant to remember that art 6 requires the entire proceedings to have been conducted on a fair basis. It is not appropriate simply to extract part of the process and look at that in isolation. In this case, as my Lord has said, there had been abundant legal advice and guidance of the most skilled nature available to Mr and Mrs T before the matter came before Wall J. There had also been the possibility, indeed the obligation, to produce further evidence: steps that had not been taken on the instance either of Mr and Mrs T or of those were acting for them. I do not therefore agree that, in assessing the impact of the Convention in this case, one should necessarily start on the day upon which the adjournment was sought, ignoring everything that had gone before. Further, I do not agree that, in proceedings of this nature, in which the children as well as the parents have an intimate and pressing interest, one should look at the question of fairness to the parents in paramount priority to fairness (in terms of a prompt decision, which is another aspect of art) to the children. In the passage that my Lord has read, it is clearly apparent that the judge had, and properly had, the interests of the children well in mind when he was making his decision.

22. However, I put those matters to one side. I will look at the case on the basis upon which Miss Booth put it in support of the submission that art 6 did require a decision, either to adjourn the trial or to stop it at the point that I have indicated. We have to remind ourselves, as I have already said, that art 6 is concerned with the overall fairness of the proceedings. The article itself lays down very few absolute rules. That said, both the jurisprudence of the European Court and simple common sense, of a kind that an English lawyer can immediately identify, do require in general terms that certain elements are present in any judicial proceedings, an obvious example is the right and ability of those concerned in the proceedings to put their case. Here Mr and Mrs T had ample opportunity and occasion, as the judge was satisfied they had done.

23. Another consideration is that there should be equality of arms between the parties but, in my view, that does not mean that there must necessarily be legal representation on both sides, indeed on all sides, more particularly where everybody concerned in the case was acutely aware of the need give every assistance to people who were representing themselves. Provided that the tribunal is itself aware o and constantly reminds itself of the duty of fairness, it is very much a matter for that tribunal, and is recognised in the jurisprudence of the Convention as being to a substantial extent a matter for that tribunal, whether, in all the circumstances, it is able to discharge the case fairly.”

[Just as well, considering what has just happened to legal representation in private law cases, that equality of arms doesn’t mean that if one person has a a lawyer, everyone else should have a lawyer]

So, in Re GB, the Court of Appeal went on to consider whether, drawing on those general principles, the decision to refuse an adjournment was plainly wrong

  1. It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings. The principles are set out in the European decision of Re P and most helpfully set out in Re B and T, as I have indicated.
  1. Applying those matters to the present case, and not underestimating the task that the mother faced in conducting this litigation before the court in the, to her, unexpected event of the court pressing on without granting an adjournment, I consider that the process that was adopted and the decision to press on without an adjournment did not breach the mother’s Article 6 rights to a fair trial, looked at either in terms of the narrow focus of the hearing itself in November or, as we have to do, against the canvas of the proceedings as a whole.
  1. This was a case which turned very much upon the assessments that had been undertaken by the various professionals. Much of the work of teasing out the detail, the strengths and weaknesses of the various family members and the vulnerabilities and needs of the children had been undertaken by professionals over the course of weeks and months, had been reduced to writing and was before the judge. The judge’s decision was very much based upon that material. There is a limit in such circumstances as to how much any advocate, lay or otherwise, can achieve where the body of material upon which the judge will rely is established, and there is no countervailing expert opinion the other way. For example, had the independent social worker instructed on behalf of the parents taken a contrary view then there would have been more room for manoeuvre available to an advocate to present a case; here the evidence was all one way.
  1. Secondly, this was a case where the judge was contemplating delay of already one year from the time the children were removed to foster care. Although they were not going to change their placement or their home if the orders sought were granted, everybody involved with them, and in particular the children insofar as they could understand it, needed to know whether or not these arrangements were going to be for the future, so that they could hunker down and get on with life and the task of growing up or bringing up the children; or, if the children were going to go home, plainly that issue had to be determined so that the moves to move them back to the parents’ care could be undertaken. The judge was therefore justified in attaching a premium to the need to achieve finality in this process.
  1. Although Rule 1.1(2)(c) urges the court to establish an equal footing between parties, that can never be justification of itself for a litigant in person seeking an adjournment and holding that the failure to grant an adjournment is a breach of Article 6 rights.
  1. At each turn a balance has to be struck; it is not a balance that is to be determined under Section 1 of the Children Act under which the child’s welfare would be the court’s paramount consideration, but the court must take account of the child’s welfare and the fair trial needs of the parties to the court, which include the parents but also include the child and, to a lesser extent, the local authority. This was a decision that the judge was particularly well seated to take; she had a prior knowledge of the case and she had indicated at the earlier hearing that no adjournment would be contemplated simply for a change in legal representation to be achieved. In my view, the judge was right to reject the adjournment application.
  1. But that is not the end of the matter. Once the case is proceeding a judge is faced with the difficult judicial task of acting as the judge in the proceedings, of refereeing the court process, but doing so in a way that seeks to meet the need for all parties to be on an equal footing so far as is practicable, notwithstanding that one of them is not legally represented, and in this regard I think the judge conducted herself in a way which was conspicuously helpful in meeting that need. In particular, the judge had been open and clear to the parties by indicating at the previous hearing that there would be no adjournment. The parties were in no doubt that that was the judge’s view and any change that they were going to seek to make in their representation would have to bear in mind that parameter set by the judge.
  1. Secondly, once the judge had decided to press ahead with the hearing she was clear in dealing with the mother as to what was required and, on my reading of the transcript, went out of her way to assist the mother to achieve focussed representation in the terms of choosing which witnesses to call and how they should be questioned. One aspect of this is that, despite the breakdown in the professional relationship between the parents and their lawyers, the judge invited counsel and solicitors for the parents to remain in the court room during the morning of the first day of the hearing. The time came when the court turned to ask the mother which witnesses she would wish to call. At that stage the judge was able to ask the mother to spend a short time out of the court room with her previous barrister and solicitors to obtain their assistance and indeed to consider reinstructing them and returning them to their previous role. The result of that was that a list of witnesses was provided and the mother confirmed that she did not wish to reinstruct the lawyers. The judge’s invitation for the lawyers to remain in the court room seems to me a sensible and proportionate step to have taken.
  1. Most of the witnesses who were called on the second day had in fact been stood down, and again the judge did not stand by the previous order which had simply listed a few witnesses to be called; she exhorted the local authority to obtain as many of the key witnesses as possible and adjourned the case from time to time to assist that process.
  1. During the evidence giving itself, the judge allowed the mother full rein; she did not interrupt the mother with interventions designed to keep the mother on a track that a lawyer skilled in the forensic process should follow; she did not bombard the mother with technical points; instead she allowed the mother simply to say what she wanted to say, and then at a suitable interval the judge would try to focus the witness onto a question or questions arising from what the mother had said.

And thus concluded that taking the principles from Re B and T and the European Court decision in P, C and S v  UK, which is reported in [2002] 2 FLR at 631 and applying the facts of this case, the Court had not been plainly wrong in refusing the adjournment.

 What we don’t have then, is a checklist of what factors tip the balance for granting the adjournment and refusing one.

(I’d suggest that relevant factors would be – the circumstances in which the parent and lawyer parted company, the complexity of the trial, the timing of the separation, what steps the parent has taken to try to get fresh representation, the vulnerabilities of the parent, their ability to conduct the litigation in person if given appropriate support, the impact of delay on the case and the child,  and the timescales for reconvening the hearing. But those are just my suggestions, the Courts haven’t sat down and thrashed out a set of factors]

Of course, this raises the interesting point – in order to properly seek an adjournment, the parent (who is representing themselves, perhaps unwillingly) needs to know of the substance of at least four pieces of case law – Re B and T, P C and S v UK, Re L and Re GB, and to be able to highlight to the Court the facts of their case which put them in the Re L bracket and not the Re GB bracket.   [Good luck with that]

It would seem sensible, where the other parties get advance notice of a parting of the ways, for the relevant cases to be brought to Court and the principles distilled into a short document for the benefit of the Court and the parents.

 The Court of Appeal in Re GB also made some salient points about the delay, it having taken 15 months to get the appeal heard, principally because the appeal had not been issued until the transcript of the hearing had been obtained, and firstly there had been a delay in getting the LSC to fund the transcript and secondly in getting the transcript approved by the original trial judge.

The Court of Appeal encourage parties in a similar position to issue the appeal without the documents and use the force of the Court of Appeal’s directions to hasten the production of those documents.

  1. From this unedifying chronology it seems to me that the following points for future practice can be drawn:

a) The preparation of transcripts, and indeed the obtaining of advance authorisation for the costs of preparation from the Legal Services Commission, may take a significant amount of time. At each turn it is important to ask the question: is the obtaining of this particular transcript an essential pre-requisite before either filing a notice of appeal or indicating that the papers are in order for the permission to appeal application to be considered?

b) Where, as here, time was running on and a further first instance hearing was timetabled, serious consideration should be given to filing the notice of appeal in any event, notwithstanding that one or more plainly essential transcripts is not yet available. Such a step

1) enables the Court of Appeal to support a prompt process by the Legal Services Commission and the transcribers in meeting a sensible timetable;

2) enables the Court of Appeal to contact the first instance judge if necessary to chase up approval of the transcript of judgment; and

3) provides a vehicle via which the proposed appellant may seek a stay of the ongoing court proceedings pending consideration of their application by this court.

c) In a case which is already grossly delayed, the notice of appeal if not already filed must be filed within a matter of a day or so after granting of legal funding and not, as here, some weeks later.

d) the pursuit of transcripts in relation to issues which, at best, are peripheral should not delay progressing the case at least to the stage of consideration for permission to appeal.