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Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. 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.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“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 … where one party is publicly funded … 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.”

I continued (para 19):

“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”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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

This is an interesting decision of the Court of Appeal

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

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

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

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

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

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

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

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

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

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