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Tag Archives: re d children 2015

High Court Judges have no magic wand

 

 

NOT Mr Justice Holman and friend

Absolutely NOT Mr Justice Holman and friend  (I don’t like the look of New Sooty here – he is frankly quite disturbing, but I wanted a wand picture with Sweep in it to please my Twitter followers)

 

 

 

In Re D (Children) 2015 , Mr Justice Holman made some very important observations about the importance of judicial continuity, particularly in cases where there are intractable difficulties about contact. He also expressed some exasperation that cases often reach a point where the Judges just give up trying and transfer the case to the High Court in the hope that somehow the High Court can magically fix everything.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/85.html

 

  1. Cases concerning intractable contact, probably more than any other case within the field of family law, require judicial continuity. There tends to be a need for a number of hearings, and it is of the utmost importance that one single judge deals with such a case from first to last so that he or she becomes very familiar with the dynamics of the a case, and the parties, in turn, become familiar with the judge who is dealing with their case. This makes it particularly inappropriate and unsuitable that a case of this kind is ever listed before an occasional visiting High Court judge unless that judge is known to be making repeated return visits to the area in question.
  2. I myself am currently sitting here in Leeds for about three weeks. I am not scheduled to be sitting again in Leeds or anywhere in Yorkshire throughout 2016, and I have no idea where I will be sitting after that. In other words, I cannot give to this case any judicial continuity whatsoever. I am merely, as it were, passing through it. For the reasons I have indicated, that is highly undesirable, and listing officers should take great care to ensure that it does not happen in relation to a case of this kind.
  3. I am aware that in some cases involving intractable contact judges of a lower tier sometimes believe that in some way a High Court judge can bring a new insight to the case, or bring about change which the lower tier judge has been unable to achieve. The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”, and any advantage in the case being heard by a High Court judge is more than outweighed by the disadvantage that there can be no judicial continuity.

 

This case bizarrely turned on an alleged telephone conversation between mother and the CAFCASS officer, who records in the very short “initial safeguarding enquiries”

 

“[The mother] stated that whilst she was in a relationship with [the father] he once threw [the elder son] across the bedroom on to a mattress whilst he was angry. She stated that he had never been physically violent towards her or the children but he had bullied her through verbal taunts during their relationship. [The mother] stated that [the father] has sleep problems and this has led to him on occasions wrapping blankets around [the elder son’s] head whilst they shared a bed. She also stated that [the father] has also made unwanted sexual advances towards her whilst he has been asleep and she fears that the children would be at risk if he were to be in the sole care of the children at night time.”

 

The mother instead says that she did not say that the father had not been violent to herself or the children and that there were very substantial allegations of domestic violence to be determined.

She had contacted four solicitors, each of whom she says told her that she would be unable to get legal aid because the CAFCASS report said that there was no violence.  [I think there might be more to this than meets the eye, as I’d expect at least one of them to have said “But if you dispute that you said that, and you do say there was Domestic violence, lets have a look at how you evidence it”, but the Judge was satisfied that this is what had happened]

 

When she raised the issues before the Family Court in person, the Judge there relied substantially on the passage quoted above to show that there was no violence, but did not contact the CAFCASS officer to ask for clarification as to why the report says that but mother disputed it, or call the CAFCASS officer to give evidence. Instead, the passage was rather taken as gospel.  Also rather oddly, when hearing the disputed evidence, rather than having the parents in the witness box giving evidence and cross-examining each other, it proceeded more on the basis of a conversation going backwards and forward.

 

  1. The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.
  2. So it came about that the case was listed for a fact finding hearing before a district judge which took place on 30th and 31st March 2015. Both parents represented themselves. I wish to make crystal clear that in what I am about to say I do not intend any criticism whatsoever of the district judge concerned (whom I do not know) who obviously did his very best in a difficult situation.
  3. The unsatisfactory nature of the hearing perhaps emerges from paragraph 15 of the transcript of his ex tempore judgment in which he says:

    “Because both parties were unrepresented, as opposed to cross-examination I allowed both parties to have their say and move the matter backwards and forwards and I heard at length from both the parties who confirmed the contents of their written documentation and gave oral evidence. I am satisfied I heard sufficient yesterday to enable me to reach some conclusions.”

    Importantly, he went on to say:

    “I do not doubt that mother genuinely wants what is best for her children and the views she expresses are her genuinely held views.”

  4. However, I have to say that the judgment as a whole contains little account of the detail or content of the evidence that was given, or any real analysis of it. The judge said at the end of paragraph 16 of his judgment:

    “At the end of the day what this court has to grapple with is whether this father is a risk to his children.”

    He then referred to that initial safeguarding report by CAFCASS and the fact that within it the mother is reported as having:

    “…stated that he had never been physically violent towards her or the children…”

    Shortly after that he says in his judgment:

    “I cannot ignore the fact that that is what it is said that mother is reporting, but other than those matters specifically referred to he had never been physically violent towards her or the children.”

  5. I have been told by the mother yesterday, and this was confirmed by the CAFCASS officer who is now the children’s guardian and was present at the hearing on 30th March 2015, that the mother strongly said then, as she says now, that she did not say to that first CAFCASS officer what he recorded her as having said. Deeply regrettably, the officer was never contacted. He was never asked to come to court. Whatever notes he may have made of the telephone conversation have never been produced or examined.
  6. The upshot is that this case has been very decisively affected by a few challenged lines in that initial safeguarding report, which are themselves based purely on a single telephone conversation of which no original record has been produced. They appear to have had the effect that the solicitors whom the mother approached thought that it was forlorn even to apply for legal aid. They appear clearly to have decisively influenced the district judge in the decisions that he reached on the facts.
  7. The upshot is that so far as any allegations of aggressive or violent behaviour towards the children are concerned, the district judge was not satisfied that anything had happened except for one incident, which became known as the “bedroom incident”, in which he concluded that the facts lay somewhere in the middle of what the mother alleged and the father admitted.
  8. In relation to the mother’s allegations of aggression and violence towards herself, the district judge simply said at paragraph 28:

    “Insofar as allegations of behaviour directed against the mother are concerned, again I hear what mother says. I make no specific findings one way or the other, but these are allegations relating to the mother. Mother is not suggesting to her credit that the behaviour was such that she is living in fear of father. They are now separated. If there had been incidents, they are not going to re-occur because the parties are not together. Again, I am not satisfied that anything I have heard satisfies me that this father is a risk to his children.”

    When I say that the allegations made by the mother (I stress very clearly that I have no position whatsoever as to the truth or otherwise of them) include an allegation of raping her, it can be seen that that particular paragraph fails adequately to analyse the evidence and reach conclusions in a situation where conclusions were required.

  9. At all events, the thrust of the judgment and decision of the district judge was that there was nothing in the past behaviour or attitudes of the father which represented any risk to the two boys in having contact, including unsupervised and ultimately staying contact with him. The district judge then made an order dated 31st March 2015 which provided that the children shall live with their mother and should have specified periods of contact with their father, initially supervised and later unsupervised but based on a specified contact centre.

 

 

Holman J determined that the only real approach here was to treat the mother’s case as application for permission to appeal, he granted that permission, and he set the findings aside and directed that there must be a re-hearing of the evidence.  That wasn’t to say that he was ruling that mother’s allegations were correct, rather that they needed to be properly heard and tested, and not to simply place reliance on one sentence of a CAFCASS officer’s recollection of a telephone conversation when that recollection was disputed.

 

  1. For those reasons I have concluded, however unusually, that I should treat the mother’s strongly stated position that the district judge made mistaken findings, as representing an oral application for permission to appeal and permission to appeal out of time from those findings of fact. I propose to grant her permission to appeal. I propose to allow the appeal and set aside the findings of fact reached by the district judge. I will give detailed orders and directions, in terms that have already been fully discussed, for this whole matter to be allocated with a fresh start to a local circuit judge who must now deal with the case with maximum judicial continuity. There will be directions designed to achieve that there is a satisfactory complete re-consideration of the true facts.
  2. I strongly hope that the mother, who in my view is clearly entitled to it in view of the serious allegations she makes, can obtain legal aid. I regret that the father is unlikely himself to be able to obtain legal aid, both because he is the respondent rather than the maker of the allegations of violence and abuse, and because his income may make him financially ineligible. The rest of the detailed orders and directions are, I think, self-explanatory and do not require further reference in this judgment.

 

Even without his wand, Holman J can still work magic and ‘get busy’ …

Sweep being rather startled by the facts of this case

Sweep being rather startled by the facts of this case

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.