Response to Commentators #4

Don’t sacrifice justice on the altar of speed

This is written by Sarah Phillimore, a family law barrister in response to a comment from FASSIT who said:

I recollect this site lambasting our group for the following comment: Fassit are finding that social workers are removing hundreds of children from innocent parents each year through sheer incompetence and organisational failure what could best be described as blatant discrepancies between the evidence presented at Court by expert witnesses (social services; health; education etc.) and the actual events or material facts of the case..”
Well now you can lambast the High Court Judges as well who said today that Judges and social workers have been conspiring to remove children unjustly from their parents.
Read more: From the Daily Mail

This Daily Mail article is a response to the recent decision on appeal in the case of Re NL (A Child) heard on 28th January 2014 by Mrs Justice Pauffley in the High Court. 

The Daily Mail appear to share the view of FASSIT and John Hemming that this is yet more evidence of a network of corruption that taints the entire system.

The President of the Family Division has made it clear that all care practitioners should read this judgment. It is clearly an important case. But does it support any of the conspiracy theories?

 What happened?

This case involved a mother who gave birth to her eighth child in October 2013. She had a very sad and troubled background over 14 years, involving drink, drugs and violence. She had seven older children and she was not able to care for any of them.

In August the mother went to a specialist unit, which offers a therapeutic community to parents who have become dependent on drugs and alcohol. The unit’s aim is to try and keep families together.

The mother did well in her first few weeks in the unit and successfully completed a detox. When her baby was born he did not show any signs that he was affected by his mother’s previous drug use. The hospital where the mother gave birth had no concerns about her parenting.

In October the LA issued an application for a care order. It was clear they were relying on the mother’s very difficult past and their allegation that she had addressed her drug problems very late in the day.

The case came for its first hearing in the Magistrates court on 1st November 2013. The Magistrates made an interim care order and the baby went to foster care. Unsurprisingly, the mother objected to this and another hearing was listed on November 7th where more evidence could be available.

At that hearing the Magistrates heard evidence over the phone from a Dr. Van Rooyen, a chartered clinical psychologist, who was very negative about the mother and her ability to make and sustain changes to her lifestyle.

The Magistrates did not agree to reunite mother and baby and she appealed, arguing essentially that the decision was disproportionate – her baby would be safe with her at the unit while she continued to engage with work that might make her able to parent her son in the community at some point.

The LA and the Guardian did not agree that there had been any procedural or other irregularity and the Magistrates had carried out a proper balancing exercise and made a proportionate decision.

The Role of the Magistrates

Some further explanation of the role of the Magistrates will be useful at this point. Magistrates are volunteers; they do not have legal qualifications, they get some training and are assisted by legal advisers in court. Unlike other judges in family proceedings they therefore have to provide written ‘facts and reasons’ to support decisions they make about children. Sometimes this can take a long time – I have been at Magistrates courts until 8 or 9pm on numerous occasions – and a practice has developed whereby the Magistrates ask the lawyers to help them and speed up the process by writing a document which can be used as agreed ‘facts and reasons’.

As long as everyone has input into this document and it is agreed, this can be a sensible approach to limit the amount of time parents have to spend waiting at court.

Revised Guidance to the Magistrates

N.B. After some debate amongst practitioners as to whether or not this case applied to ALL hearings before the magistrates or only those where the parties wanted to argue about what order was the right one, the President of the Family Division confirmed on March 3rd 2014 that there are NO circumstances where is is permissible for the parties to contribute to the writing of facts and reasons.

This revised guidance was issued and approved by the President of the Family Division

A) Public Law

  • Under no circumstances should the local authority or any other party to the proceedings be involved in drafting Justices’ written Reasons. This prohibition applies irrespective of whether orders are said to be agreed or ‘not opposed.’
  • Henceforth, the court should never ask any party to supply draft Reasons or suggest that a draft be circulated amongst or consulted upon by the parties.
  • The practice of inviting parties to submit their own position statements in which they may set out analyses of the facts as well as their contentions in relation to resulting orders is unobjectionable.
  • It is entirely permissible for Justices’ Reasons to include references to documents filed by the parties – for example position statements, case summaries and chronologies. As appropriate, parts may be adopted e.g. ‘The background facts of the case are as set out in the case summary supplied by Miss A on behalf of X County Council’.
  • In all cases, as part of the case management process, the parties should provide written details of the agreed issues as well as those which are in dispute. It is acceptable and often helpful to record that information in the Justices’ Reasons.
  • Templates and / or pro forma Facts and Reasons documents may be used so long as they are created by the Justices in consultation with their Legal Adviser. If a template or pro forma is employed, the Justices must ensure that (a) case specific detail is incorporated to explain the key aspects of their decision and (b) they alone determine the content. Examples of key decisions recorded upon a template will be, how, if at all, the threshold criteria are established; and whether upon consideration of a child’s welfare interests, he should remain with or be separated from his parents at any stage of the proceedings.
  • The detail and length of the Reasons document will vary according to the complexity of the case; the stage reached in the proceedings and whether any of the facts, or the order sought, are disputed.  Where all or some aspects of the case are contested, the competing arguments and the reasons for preferring a particular course should be given.
  • In every case, even where the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure not only that justice is done but also that it is seen to be done.

 

 

The Appeal hearing on 28th January 2014

There were obviously very serious problems in this case that led to Mrs. Justice Pauffley allowing the mother’s appeal and reuniting her with her son in the unit:

  • An expert being asked to prepare crucial report in very tight timeframe and without meeting the mother
  • Sending documents to the court without input from the other parties
  • Magistrates relying on ‘facts and reasons’ drafted by someone else
  • It took almost three months before the mother’s appeal against the orders in November could be heard

Lets look at these in turn.

Experts who report too quickly and don’t meet the parents.

The Judge said:

It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

It surprises and alarms me that Dr. van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a LA professional who had never met the mother. I struggle to understand how Dr. van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the unit – who were positive about the mother].

Sending documents to the court and not the other parties

The court relying on facts and reasons they didn’t draft.

With regard to the first hearing on 1st November, the LA lawyer wrote and emailed the ‘facts and reasons’ document before the hearing. The mother’s lawyer had no input into this document and was simply given a hard copy outside court on the morning of the hearing.

The document was then amended and included a reference to the expert’s report, which had been obtained only the day before and is discussed above. However, it did not contain any reference to the relevant law applying to removal at an interim stage

See our post about interim removal – what does it mean and how does it happen?

The Judge was told that this was ‘local practice’ and the Magistrates court expected every LA to provide draft ‘Facts and Reasons’ for every hearing in care proceedings. These documents were not routinely circulated to other parties.

Breach of Article 6 ECHR

The Judge was clear that this was an unacceptable breach of Article 6 of the ECHR, which provides for the right to a fair trial.

She said at paragraph 65:

Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this are but are widespread across the country.

And further at paragraph 67:

Seemingly, there were process failures in this case, which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the LA and the court, which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to ever other party

Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the LA’s analysis of what their Findings and Reasons might comprise.

Lengthy delay in listing the appeal.

The Judge said at paragraph 81:

Three things should be emphasized. Firstly, appeals from interim care orders where separation has been sanctioned are amongst the most urgent of all public law hearings; time is of the essence and the court must do its utmost to list such appeals as a matter of urgency. By that I mean within days or at most a very few weeks. Second, that listing for the convenience of Counsel, whilst desirable, should not be a factor leading to a hearing date later than the court can accommodate. Third that the guardian’s ability to attend in person at the appeal hearing is of minor significance when weighed against the requirement for an early hearing’

Conclusions

This case went badly wrong and the Judge’s criticisms are well deserved. The removal of the mother’s baby on November 1st then became solidified as the ‘right thing’ by the second hearing on November 7th, the Magistrates even going so far as to say the baby might suffer disruption being removed from foster carers where he had lived for just one week!

The Judge commented at paragraph 55 of her judgment:

This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the ore reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

It was clear that the LA had ‘given up’ on the mother by August 2013 in light of her bleak previous history and had probably decided by then that they would seek removal of the baby once he was born.

But is this further example of systemic corruption in the family court system? I don’t think so. It is a horrible example of sloppy practice and a vivid illustration of something that often happens in these cases – professionals make a reasonable decision about the ‘likely outcome’ of a case but in so doing then lose sight of the need to constantly respect and observe due process.

Or, in other words, just because you are now dealing with the 8th child of a mother with very serious problems who has had all previous children removed from her care, you cannot for this reason alone fail to respect and apply due process and the requirements of the law.

There is a need in ALL cases to act openly and fairly at all times and to remember the positive obligations imposed on the State by Article 8 and to consider how to support the family to remain together.

Underpinning this jettison of good practice was clearly a fear that unless people acted speedily, the case would fall outside the very strict 26-week timetable which now operates in care proceedings.

Mrs. Justice Pauflley rejected this, loud and clear, stating that ‘Justice must never be sacrificed on the altar of speed’.

She cited Re B-S (Children) [2013] EWCA Civ 1146 at paragraph 38 of her judgment.

‘Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the LA’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied’.

I do not think this case ‘proves’ that systemic corruption and state sanctioned baby stealing exist. It is unfortunate that once again the Daily Mail chooses to report matters of such importance in such a ham fisted and hysterical way.

It is however a very sobering reminder of how professionals must always be on guard not to slip into sloppy thinking and over reliance on past history, however bleak it may seem.

If FASSIT and others reject this analysis I hope they will at least accept that the clear and uncompromising words of Mrs. Justice Pauffley show that the tentacles of corruption have yet to reach the judiciary of the High Court.

What further debate could we be having?

We do need to stop wasting time over allegations of systemic corruption and look at the real issues these cases throw up. If we didn’t have the Magistrates as volunteer Judges who don’t require a big fat salary or even bigger judicial pension, the whole family justice system would grind to a halt. But the responsibility of decison making in these kind of cases is massive – are we giving our Magistrates enough support? Are we expecting too much of them?

The clarification on 3rd March 2014 from the President that there are NO circumstances in which any party to proceedings may assist in drafting the Facts and Reasons, even where everyone is agreed and happy to do this,  is a departure from what has been usual practice for many years. We will have to wait and see what the consequences of this will be.

Why does it take so long to list further hearings, particularly appeals? Is there really no money in the pot for more judges and more available court time so we can react with speed and urgency when it’s needed?

8 thoughts on “Response to Commentators #4

  1. Julie

    Interesting. Certainly appears we are asking far too much of magistrates. Of everyone involved in this case, the only volunteers, as far as we know, are the magistrates who are of course supposed to represent the community. Perhaps people who claim the professionals in the system are corrupt should think about helping out by applying to be magistrates themselves.

    Reply
    1. phillimoresarah Post author

      I do not know whether to applaud or scream at that suggestion. Interestingly it seems that practitioners are interpreting this judgment as NEVER to draft facts and reasons on behalf of magistrates, but this may not have been the intent behind the judgment. Further guidance may be coming.

      Edit The guidance arrived on 03.04.14. Confirmed there are NO circumstances in which anyone other than the Mags, assisted by their legal adviser, may draft facts and reasons. Interesting times ahead…

      Reply
  2. C

    ‘Justice must never be sacrificed on the altar of speed’…
    Isn’t that exactly the sacrifice that JR timeframes frequently require ? Especially if one is not legally trained, and struggling with local authorites who know how to manipulate the law to their own best advantage? It is illuminating that AB & Anor v. Haringey was a case brought by two child protection officers – without ever entertaining the Local Authority complaints process or the LGO. Being on the ‘inside’ they understood the chicanery involved in taking the ‘recommended route’.

    Reply
    1. Sarah Phillimore Post author

      JR is different from other remedies; because it is the court potentially imposing restrictions on the actions of public bodies – which could have consequences for many thousands of people – it is considered very important that you act quickly. Permission to apply can be refused even if you are within the 3 month limit if the court thinks you didn’t act promptly.

      But I accept and agree with your point that the law should be there to serve and protect us all, not act as a barrier to protect those in power from being called to account for their carelessness or worse.

      But as governments insist on introducing new laws, rather than codifying or simplifying the ones we already have, whilst at the same time reducing the amount of legal aid available … It’s not going to get better any time soon.

      Reply
  3. C

    Too true. Even the statutory frameworks that are supposed to underpin L.A. behaviour are routinely flouted, and entirely unmonitored. We were told by the Dfe that ‘Getting the Best from complaints’ (2006) was introduced under a different government, and therefore they had no interest in policing it.

    Reply
  4. nathan

    My lil girl gpt removrd of social servicrs as me and my gf was having an argumeny and sje fell off tje ned how wr was im the kitchen i just want to know are judges on ut side or do they work woth social services my bby been in care since xmas were jn cpirt soom social services are tryomg to adopt her shr was meber meglected we had a prentomg assesmemt dom3 who social services foumd amd we failed knlwimg they would jave to rejab baby with us we worked woth familus first amd out of fpir assesments ome positive plus my bbby socoal wprker lefy it a new ome there sayomg we camt meey our lil girls mmeds familys first rwport says different i got videos amd photplos to prove tjat tjete just liem i never bee thrpigh this i was on child protectiom wjen tbey took her they domt think she cam roll i got a video provimg sje cam can someomr advise me what to do amd to help me win my baby bck she omly 8 momths old amd i miss her amd wamt her home they jusy wmt to make momey

    Reply
    1. Sarah Phillimore Post author

      Sorry Nathan it is difficult to understand what you are saying because of how you have written this post; I can’t understand some of the words.

      From what I can make out a) your baby has been taken into care b) you were arguing with your partner c) your baby fell off something.

      you want to know if a)judges are on side or work with social services

      You say b)you have failed a parenting assessment (?) c) you have a vide proving that she can roll when they don’t think she can

      and ‘they’ – I assume social workers – just want to make money.

      From just the little you have provided, I can immediately see two red flags; you were arguing with your partner and during that argument your daughter got hurt. That means it is likely that there is evidence that your child has suffered significant harm in your care.

      Judges are not on anybody’s ‘side’ – they are there to listen to the evidence, decide what did or did not happen and apply the law. If you don’t agree with the parenting assessment, you need to challenge this in court. You urgently need to get a lawyer and get proper legal advice. The fact that your child is developing ok by being able to roll may not be relevant if the court finds that she has been hurt in your care and is at risk of being hurt again – but it is positive that she is developing on track.

      I don’t agree that social workers ‘just want to make money’ by which I assume you mean, they are lying to take your child to get bonus payments. It sounds as though you have some serious issues to deal with here and you urgently need proper legal advice.

      Reply
  5. Pingback: The woeful state of the debate about child protection Part III | Child Protection Resource

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