The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)
I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.
Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.
If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.
The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.
But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.
I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.
For more details about my concerns about Hemming and his organisation JFF, see the posts set out here.
Summary of the decision in Re J concerning experts’ fees
- There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
- Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
- Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
- The LAA should give reasons for its refusal
Fixed rates paid to experts when parties are legally aided.
1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.
Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO
5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.
The Family Procedure Rules 2010
9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.
What happens when one party has no money?
11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.
So what happened in Re J about splitting costs between LA and Guardian?
16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.
The hourly rates of the expert in Re J
19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.
I think in many circumstances, particularly where a child is known beforehand to have medical or special educational needs , hundreds of cases would not go to court at all. In all correctness, before taking any decisions or instigating any proceedings in respect of such children, it is incumbent upon the Local Authority to seek expert reports firstly from the child’s GP and secondly, from his or her expert ,consultant doctor . Their opinions are vital to correct appraisals.
Thus ,if any fees are involved, they should be paid by the Local Authority. Unfortunately, we often have a situation where the main driving force behind the LA might not be totally in a child’s interests. Budgetary considerations are sometimes more vital to an LA and, due to cost, they will go to court unnecessarily and then the task becomes one for the Court.
The other driving force behind the LA may also be to avoid fair appraisals in the cause for their own aims. Should a child be well-cared for , they may wish to hide that fact from the Court. They will prefer to conceal positive medical assessments from GP and consultant. If they have them, they shelve them.
Then , at Court, they can apply for medical reports from Court appointed specialists ( the usual suspects) who make vital assessments without the involvement of parents and who are forced to make them on restricted information and misrepresentations from SW’s and Guardians. This is bound to be the case when correct procedure isn’t followed and there may be a lack of impartiality.
I think the fees should be paid by the side which requests them needlessly.
Angelo – there is so much wrong in your comment I am going to take the time to deal with each point in turn.
In all correctness, before taking any decisions or instigating any proceedings in respect of such children, it is incumbent upon the Local Authority to seek expert reports firstly from the child’s GP and secondly, from his or her expert ,consultant doctor . LA decisions are not taken in a vacuum. Of course they take account of the relevant medical evidence. Why do you think they don’t?
Thus ,if any fees are involved, they should be paid by the Local Authority. Unfortunately, we often have a situation where the main driving force behind the LA might not be totally in a child’s interests. Budgetary considerations are sometimes more vital to an LA and, due to cost, they will go to court unnecessarily and then the task becomes one for the Court. This makes no sense at all. Yes, budgetary constraints are a massive issue. Therefore the biggest problem is LA FAILING to go to court to seek a care order and allowing a situation to drag on for years that causes children harm. In my professional experience of now more than 20 years, it is far more likely to see children who have been left in situations of neglect than children ‘forcibly removed’ too quickly.
The other driving force behind the LA may also be to avoid fair appraisals in the cause for their own aims. Should a child be well-cared for , they may wish to hide that fact from the Court. They will prefer to conceal positive medical assessments from GP and consultant. If they have them, they shelve them. I simply don’t understand this. This is why parents have lawyers. This is why all relevant reports are before the court because the parents’ lawyers will identify them. The LA cannot ‘hide’ a medical report from the court. The doctors are not under their control or in their pay.
Then , at Court, they can apply for medical reports from Court appointed specialists ( the usual suspects) who make vital assessments without the involvement of parents and who are forced to make them on restricted information and misrepresentations from SW’s and Guardians. This is bound to be the case when correct procedure isn’t followed and there may be a lack of impartiality. The experts are instructed by ALL THE PARTIES. ALL contribute to the letter of instruction. NO expert should report on ‘restricted’ information. The parents give consent for their medical records to be disclosed. Any expert prepared to report without full information is incompetent and easily exposed by the parents’ lawyers.
I think the fees should be paid by the side which requests them needlessly. Again, your knowledge is simply out of date. The test for an expert report IS necessity and has been since the Children and Families Act 2014. There is no way a court will permit an unnecessary report as this would be unlawful and the judge would no doubt get into trouble and the LAA would not pay for it.
Sarah, I shall address each one in turn.
1. They may well not operate in a vacuum and they may well see medical evidence. Indeed it is vital if neglect is alleged, Indeed ,I do not think they don’t .I wrote that it is incumbent upon them to obtain the evidence. They usually do but , as detailed in an Official Complaints report which I have had access to, they shelve reports which are hostile to their litigation aims. They do not declare them to Court or expert assessors because they don’t want them to know when children have not been neglected and are well-cared for. They are trying to prove significant harm, aren’t they?
2. It will make sense to many readers. Of course, I wasn’t even thinking about what you might see as the biggest problem but about the cost of experts in care proceedings as per the above post. If the Local Authority chooses to withhold ‘vital’ medical evidence then it should pay for any superfluous expert evidence a Court deems necessary in order to make appraisals. After all, the required expert evidence is already available and it has been supplied by impartial professionals who know the children and family well ( usually for many years). The Court experts don’t know the family, usually don’t seek a meeting with parents and take as true all evidence sent to them by the LA and the Guardian. Significantly, when LA’s lodge statements with a Court late, it ensures that the experts don’t see the parents evidence-in- chief either. Check out the lists of evidence seen by an expert in the footnotes to his or her report next time for confirmation of this,Sarah. If expert medical reports are required to make correct appraisals, those appraisals should be taken before a decision to take Court Proceedings. How can you possibly say a child has been neglected otherwise. It would have to be speculation. So, if the LA goes to Court and the Court decides they are needed , the LA should pay for them. Hope that makes more sense.
3. It would not be hard to understand were I allowed to circulate the official complaints report mentioned above. The Local Authority failed to lodge with Court hospital reports of children and Initial LAC medical assessments of children with Court and failed to reveal them to the respondent’s lawyer as requested. So the solicitors asked for a Court order . The Judge ordered the documents to be lodged with court and served . The LA ignored the Court order and the Complaints report confirms it. The Judge didn’t notice;, not one of the lawyers out of three sets did either. The Social Worker kept quiet, naturally and so did the Guardian . The parents were entitled to expect the Court order to be obeyed indeed they took it for granted and, on the basis of that, they never put medical evidence themselves or request the doctors be called as witnesses. Afterwards, when they complained they were told it did not warrant an application for legal funding to appeal.
4. See point 2 above for whether information is restricted or not. Yes all parties agree an instruction letter but as you will know, they are fairly standard. Incidentally , next time, Sarah, check the expert report to make sure ALL questions put have been replied to. In some cases, the Guardian’s lawyer who sends the letter sends the wrong one and omits any questions added by the respondent. When the respondents protest at the final hearing, it is neatly brushed under the carpet by the lawyers.
5. I respect things have changed, Sarah, thanks for informing me I am out-of-date. However, I think my answer to point 2 applies here too. It is incumbent on LA’s to obtain expert evidence before even thinking of going to Court ,in my opinion, in order to make well-informed appraisals. If it fails to do so and a Court has to order them, the LA should pay .
Hope this helps, all further comments welcome.
LA decisions are not taken in a vacuum. Of course they take account of the relevant medical evidence. Why do you think they don’t?
I would like to reply to this. No they don’t. It was clear from my medical records that there was an incident when my ex threatened to kill me with a knife. In fact my GP gave me a letter for other proceedings so I could get legal aid, as a domestic violence victim. Yet the “expert” who incidentally claimed the maximium allowable, missed this. I went through hell in court, being called a liar and thus being revictimised. More importantly my children still stay at risk.
So where was your lawyer? Why wasn’t this expert cross examined? Of course things can get missed. No one is perfect. Mistakes are made. But if there was a clear entry in your medical records that was relevant, why didn’t you or anyone else draw the expert’s attention to this? And challenge him? How could you be called a liar in court if you had a document that showed you were not?
Sorry, I just don’t understand how this can happen.
I know I sound like a conspiracy theorist, but sometimes a number of factors come together and the result is injustice. Firstly an incapable solicitor, who refused to let go of the case as she had made an enormous mistake, add in a nodding dog Guardian , a very inexperienced barrister and a judge who threw his weight around and really does not understand mothers.
I, and other parents, wish that I could publish materials before the court, all would be really clear then.
Sarah, I do appreciate your comment; you seem mystified asking again ‘ where was your lawyer?’
I agree , it puzzles victims in court too and many have tried time and time again to answer your question. Do you understand what is meant by ‘ a cosy relationship’ between Children’s Legal Panel solicitors, other professionals and LA’s? Do you understand what I mean when I allege that these firms of solicitors have a ‘conflict of interest’? Do you understand what victims mean when they talk about how solicitors ‘turn’ a blind eye to clear injustices, about the lack of respect shown by all professionals towards non-professionals, how professionals ignore the complaints of institutional abuse victims, about supermutuality on the part of the system, how Police ignore Public complains too and how they doctor evidence?. Did you read about Hillsborough , have you seen any of the findings made by the Public Enquiry currently in session about the system, about how children have been sexually abused and enslaved in care and how LA’s and government have turned away and colluded with it by denial for decades?
Before anyone says parents should complain about solicitors; think about it. How far do you think they’d get as non-professionals? As I’ve before, solicitors have their ways of dealing with complaints as LA’s do. They just ‘shut up shop’.
Fair enough – I can only comment on my own experience – what I have seen and heard.
And I know there is no way that I or any other lawyer I have ever met who would allow their client to be called a liar if there was a document before them that showed the client was telling the truth.
But we need our clients to speak up and tell us if we miss something.
I have to say I have very rarely found my clients shy about speaking up, particularly if they don’t like the job I am doing for them.
But I appreciate others have had a different experience. That is why we have to keep talking. I can’t dismiss an experience simply because it isn’t mine.
But equally I hope you will accept the truth of what I say and that my shock is genuine that such a situation could be allowed to arise.
We can only ask you to be fair, thank you . I have tried several times to explain also why parents tend not to engage with the case as you seem to expect them too. They become subjects of an outrageous confidence trick. They tell their solicitors everything ,how referrals are not factual, background information is wrong, how CS statements are wrong etc. etc. and they tell the parents to leave it with them ,to cooperate with the SW’s ,sign needless S20’s etc. etc. etc. ‘don’t worry, at the family court you will get a fair hearing on the facts alone, the LA are only trying to help and support your family. So the parents trust the solicitor and wait for the SW’s to contact them and give them the chance to reply to their concerns. No-one comes near them. Still they trust the system and that they will get a fair hearing. No -one tells them what is being planned behind their backs so they stop worrying . False statements are lodged with court by the LA and the parents tell their solicitor. The solicitors go and tell the LA and the Guardian’s lawyers their arguments and they adapt and change their evidence. Then the solicitors may use these exact words ” don’t worry, we’re saving it all for the big fight at the final hearing” So still they trust the system and relax as best as they can. They don’t think they have any need to worry. No-one has even mentioned the possibility that their children might be removed permanently. They don’t realise they need to engage adversarially,they keep quiet and cooperate.
Lord Mumby says that parents should be promptly informed about plans and be involved in them. The parents wait in vain to be contacted by SW’s and let in on enquiries or appraisals.Then ,just before the final hearing a care-plan for permanent removal and/or adoption is lodged with Court by the LA.( probably late so there isn’t time to launch a proper response).
The parents get the biggest shock of their lives. Its far too late then to start organising evidence or contacting witnesses. Even if they did at that stage ,its too late.
This is just to put you wise ,Sarah. This is why barristers should always check procedure thoroughly from the earliest stage and why they should understand that much of the LA evidence is merely gossip, uncorroborated intelligence and SW false entries on computer databases DISGUISED as fact.
They should ask whether their clients have been involved and informed promptly of plans etc. and if the LA says they have and the client says they have not, ask for dates, minutes of the mythical meetings ,copies of disagreement etc. All procedure should be checked thoroughly. Often, it isn’t done.The lawyers and Judge are often biased in favour of the LA , that’s why.
You want proof; here it is!
a)When Court orders are flouted , guidelines and safeguards ignored and false representations are made by the LA, NONE OF THE THREE SETS OF LAWYERS inform the Court. That can’t be a coincidence. They have discussed it together and decided to let it go.
b) When a parent flouts court orders, ignores guidelines or makes false representations, they inform the Court pronto and the Judge corrects the situation.
On the b of p. What more proof do we need?
Of course, this does not always happen, but very often it does. I doubt if you would put up with it Sarah.
Sam , were your solicitors real ones or were they unqualified as they were at the last case I was involved in?
The first person who dealt with my case was a legal executive, it was then handed to a children’s panel solicitor. I agree with everything you have written in your above post about flouting of procedures, and falsified evidence. From my perspective, and I am not speaking about others experiences it is a very one sided system. I have also experienced solicitors talking about other cases in front of me ( I don’t mean in advocate’s meetings), so I have reason to believe a considerable amount is sorted out between them informally. So basically you are helpless if they take against you and the group dynamics kick in.
PS. I have also tried to explain before ,Sarah that it isn’t possible for your client to produce or demand a document . Why , how can he or she possibly know the exact, date,time and place in the files of EVERY document. They may demand to see medical evidence or SW evidence but any hostile to the LA case can easily be taken out ( redacted completely).All evidence presented will be biased in favour of the LA case.
Barristers, check the evidence for impartiality. If not one thing is said in favour of your client , not one despite improvements made etc. put arguments on that basis because it proves bias (on the b of p).
I am quite appalled , Sam, at the manner in which you and so many hundreds of other parents are treated by professionals and actually inside the Family Court. The thing that distresses one the most is not so much the false representations , biased evidence and claptrap used against one during the care-proceedings ; I suppose it can be said that young, hard-pressed ,inexperienced SW’s can be expected to make mistakes and that they have insufficient training in the Law and in common, universal human rights. What tortures ones mind and insults the intelligence of parents so much is the ‘cover-up’! When one makes an official complaint , for example, and the so-called independent investigators refuse to look at your supporting evidence . Or when so-called independent lawyers look at it but arrogantly refuse to use it on the pretence it will harm ones case. When ONE CAN PROVE PERJURY and MALICIOUS INTENT but Police refuse even to investigate and seek evidence. Tell your lawyers about perjury and they answer by saying ‘ its such a difficult one to prove’. So they prefer it if you accept falsehoods on the grounds of co-operation.
The Lawyers, what is more, know of the culture of cover-ups because we read of it all the time. It is common-place in child-protection. Yet I will not accuse these lawyers of arrogance neither will I call them corrupt. They just can’t help insulting and disrespecting the claims of parents and children because of the completely illogical trust they have in their fellow professionals and a ‘no-smoke without fire ‘ attitude when it comes to families.
A constructive question for all readers :
Which party is more likely to have invented a narrative ,on the b of p, the poor worried Mum or Dad who has followed their solicitors advice and cooperated fully with enquiries as advised or a LA which fails completely to follow frameworks and guidelines from the outset of a case? Which party is likely to be the honest one?
My own opinion,It stands to reason that should the LA fail to make correct enquiries and don’t even check facts with parents that it must make its own up. The accountable party must be given the chance to give an account of events. Lawyers are taking citizens for fools if they say such failures are not sufficient to warrant more than a 50/50 chance of winning an appeal.
Unfortunately, we are wandering from the subject of the thread. How did that happen? I repeat my opinion is that the LA should pay all the fees because it is incumbent of them to make such enquiries before they go to Court really.
I wanted to have an endocrinologist and orthopaedic expert opinion and ask for a second opinion on the neuroradiologist report as it conflicted with the report given by the Consultant responsible for the original MRI finding. I was fully prepared to fund all 3 reports. I was refused.
I have since engaged the services of a forensic expert as part of the criminal appeal. If necessary I will also fund the orthopaedic and endocrine ones. No defence experts were called in the criminal trial either to refute the SS pet experts who know which side their bread is buttered. Its about time the 30 year old out dated triad is exposed as the Adoption Mill Machine it is
Its the court who makes the decision about whether or not experts are necessary. If you believe that the court made the wrong decision in refusing to admit evidence from these experts, then you need to appeal again that decision but you have to do it quickly as this is a case management decision and thus the time limits are very short.
Joelly, please clarify whether you are talking about a Family Court case or a criminal court case with higher ( fair) procedures?
In the ‘inferior’ Family Courts, the court decides which evidence it believes and which it doesn’t what is more decisions are made in a ‘closed’courtroom! Really it is more of a professional tribunal than a court.Why would your barrister not insist that all evidence is put before the Court in the first place?
First – it is not a closed courtroom. Accredited members of the press are allowed to enter, although I appreciate there are serious limits on what they can report.
Second – the Judge decides what evidence he/she believes and what not. This is the same in any civil hearing. The only place where its not the Judge is the criminal trial before a jury. But most criminal trials are before magistrates. So the vast majority of all court disputes are decided by a single judge or 3 magistrates. Not sure why family cases alone get singled out as ‘inferior’. This is our system of law and how we resolve disputes in court.
It is not a ‘professional tribunal’. It is a court, presiding over adversarial proceedings. Parents have a responsibility to play a role here. IF there is evidence that they want their lawyers to rely on THEY MUST MAKE SURE THEIR LAWYERS ARE AWARE OF IT. We are not mind readers. Parents can’t just sit back and let these kind of proceedings sweep over them.
Sarah, thanks as always for your comments.
Further discussion- Court hearings in the Soviet Union were considered to be ‘closed’ even though they, too, admitted ‘accredited’ press reporters with strict limitations set by the Judge on their printed output. Fair comment was not encouraged, to say the least, and not even family members of the accused were allowed to enter Court let alone neutral members of the Public. The respondents were instructed that the Court decided which evidence was to be believed .Russian ‘Judges’ were the administrators of the Court and it may be said they ‘rubber-stamped ‘ its decisions. They were worse even than our infamous Judge Jefferies and even worse than our present-day family courts in that 100% of defendants were found guilty ( even the innocent) and handed lengthy prison sentences with no chance of appeal for low-level alleged crimes e.g. political dissent disguised as treason against the state. Once delivered by the Courts into the hands of the state ,the victims of injustice ( as children are in 21st century Britain) faced institutional abuse in the shape of mental torture, utter degradation and other human rights abuses ‘for example, in respect of cultural heritage and the ability to practice their faith.
There was little chance of winning against the Authorities indeed the Public officials and evidence – givers were recognised as ‘fascists wrapped in red flags ‘ wielding ‘red notebooks’. Anyone who made the mistake of arguing in the defendant’s favour ( lawyers included) were marginalised and faced ruin themselves. Not much Justice there and at that time all our western lawyers were most critical of their practices. Readers might find that rather ironic now!
In our civil family courts, formalities and procedures laid down to administer Justice aren’t observed to the same standards as in Crown Courts and they do not have juries. What it boils down to is that these inferior courts must have limits set on their power. Cases affecting civil liberties and draconian sanctions like ‘forced’ adoption or any which impose permanent liquidation upon a families, NO WAY! Those cases must be passed on to a superior, open court and the decisions made by a jury of peers. Sarah,i think the likelihood of correct decisions being made would rise dramatically at both ends of the spectrum leading to less inhumanity and to less death to innocent children. It would be worth putting opposing arguments rather than kowtowing blindly to false evidence and hoping for the best.
You are right when you say that Magistrates hear most criminal cases but mit is also true that they are ‘inferior’ courts just like the civil ( county) courts. They aren’t permitted to hear serious cases which lead to lengthy sentences.
Every one involved should acknowledge fully that the main problem faced by citizens is one of INJUSTICE. It is about institutional abuse of the judicial system; not chiefly one of a lack of resources to support social care or the training and /or inefficiency of SW’s but of illegitimate aims of the Authorities which direct the CS and set the policy imperatives; it is about dishonesty and malpractice on the part of LA’s and the legal system.
What to do about it. As usual I will welcome all constructive suggestions. I would say we should raise standards to provide for Justice or ban the family courts from endorsing such extreme care-plans. Perhaps we might grant them the power to impose and enforce reform upon dysfunctional families through the use of probation orders and suitable rehabilitation plans related to addiction. Or community work for unemployed fathers causing a problem. These measures are more proportionate.
In the view of many parents, Family Court lawyers on all sides have a lot to answer for and it is shown when they are often criticised by High Court Judges aghast at failures which pass in the lower civil courts. We all know that bias exists inevitably in these inferior courts as confirmed by yourself ,Sarah, most particularly in regard to gender-bias on a recent thread. You asked then, what can we do about it? The only precise answer to that precise question is that serious cases are to be heard before an impartial jury of twelve peers.
Respondents don’t expect their lawyers to be mind-readers ,Sarah,or SW’s for that matter. You aren’t being fair,in my opinion. Many parents will find it objectionable to be blamed for not engaging especially when they are left out of proceedings and not involved in planning as commanded by the President. Especially when their solicitors advise them to keep quiet,accept concerns etc. and that the cases are not adversarial. Parents have described repeatedly how they are excluded from any semblance of a mediation process. You should LISTEN! They aren’t let into pre-proceedings discussions during which opposing arguments and opinions are put and compared ( ostensibly) and they are unable to contest those claims put by SW’s and Guardians against them. Those professionals are allowed into the discussions along with the lawyers. What can be more biased than that? Plus when they try and argue against LA evidence when meeting the Guardian , they are accused of being over-defensive. Plus their evidence-in-chief ( statements) are abridged, cut, toned down and otherwise doctored by their solicitors due to the court protocol. Accuse professionals of perjury and parents are ignored. The solicitors will not countenance such a suggestion even when it is perfectly plain. They just will not act against it. Please don’t play the blame game and pass the buck to parents. Lawyers should show more willingness to accept responsibility for system failures and injustice.
Don’t forget either that many families are vulnerable and semi-literate. Some may be sick being domestic violence victims or have MH problems and so . Yes, of course, some parents are genuinely guilty of child-abuse or neglect but in those cases, they too are entitled to humane treatment and Justice. The safety net must never be withdrawn for the sake of children involved. The children must not be subjected to callousness, authoritarianism and trauma in care as they are currently.
We have to be more realistic. Justice must be seen to be done!
ok im in care proceedings and have quite literally this evening realised that everything you’ve detailed is exactly how the LA, guardian and the legal representatives have acted it’s beyond corruption and in fact my children have been subject to emotional and physical neglect, abuse and harm for 8mnths and if i don’t act this will continue.
please I am desperate to know whereto turn now, I have every piece of professional evidence to prove that every suggestion and accusation is a lie and i also have recordings of my children admitting to being educated the la lying.
in addition I have every document related to my children their entire lives as ive always asked for school and medical file copies.
too put it bluntly the LA messed up, when they realised they did a covert staff change, my 2 exes are also in alignment, isw’s were then changed and the IRO disappeared. i then found criminating evidence on my isw.
ive now realised that teh LA were covering up from the start, 2 exes also, i kept raisng concerns via my solicitors but no one seemed to know anything. when looking through the bundel they arent there and ive been questioned why i haven’t raised these and told its in the court arena. so this means ive not really been represented. the guardian shouldve noticed key factors but didnt. i then went above and compalined to all superiors except my solicitors. this has clearly drawn attention too teh la screw up from the start, the 2 exes alignment, my lack of represenation and the judges ignorance. now meaning that the la and the guardian have to align for teh sake of the children as too oppose each other means accepting truth. the 2 exes of course.
but due to clear and evidented perversion of the course of justice from all parties including represenation and mine theyve all broke the law under the eyes of a judge so they all becoem questionable. but not one of them can acknowledge this as they all truly know that the acts teh last 9mnths are illegal and with intent which for the judge and solicitors could be very bad if exposed so theyve had to align as learned friends.
ive been trying to get high courts to acknowldge me but cant as my trial is in november which is pointless if idont expose now.
i would not make a fool of myself in saying that my children are neglected and abused and subject too extreme parental alienation which is abuse and i can prove everything. pleas etell me you can help. and yes i understand all the terminology and framework a si have ba in childrens health and social care
You need a lawyer. Are you saying that you had a lawyer in the proceedings but they didn’t represent you well and now a care order has been made and you have no lawyer?
Your comment represents the massive uphill struggle in trying to sort things out AFTER the hearing. These issues have to be raised and dealt with DURING the hearing. The Judge will simply say – you had lawyers, you had a chance to cross examine the social workers etc and bring other documents to my attention, why didn’t you do it? The pressure is really on now that everything has to finish in 26 weeks.
I know nothing about you or your case other than what you have posted here so i can’t possibly comment on the truth or otherwise of what you say.
but of course, it it is true, then something has gone very badly wrong if the court has endorsed a plan made on lies or other kinds of professional wrongdoing.
But to unpick it at this late stage, particularly if care orders have already been made you are going to need help. A trained lawyer would be best but if you can’t find one/can’t afford it there are SOME Mckenzie friends who are good but be very, very careful. Avoid the ‘campaigning groups’ such as Justice for Families who usually end up doing more harm than good to the cases they take on.
There may be something helpful here https://childprotectionresource.online/legal-advice/
Janine, If the final hearing or ‘trial’ as you call it is in November, take Sarah’s advice and ensure you engage with your solicitor NOW in the right way.
If you think the one you have is not doing a good job for you ( as many other parents do) then you should ask Sarah for further advice quickly. Has the solicitor appointed a barrister for you? If not ,I advise you to demand one and when you see him or her say that you instruct her to appeal any care-order on the grounds that the case has not been conducted correctly. I am only an ordinary parent giving this advice ,BTW, I should add.You should realise,however that even if you show your contradictory evidence,the lower court judge will not necessarily read it. He or she assumes the LA and Guardian have made honest appraisals. It’s no use arguing about false evidence. You have to challenge the conduct of case enquiries etc. Please note that if you have used your correct name here, be careful you don’t say anything which might identify any of the children involved . Please keep us informed.Often , LA’sThese y
Hi angelo. Final starts next week. My reps and the other 3 are all guilty of not handling the proceedings well at all. I tried to change rep but time frame was too short. Yes met barrister but if im honest it’s beckenham the 4 learned friends fighting to protect thier job titles now. I get what I can in with them but have found another approach. I firstly raiseductive complaint to all professionals, I got ignored so did line managers, again ignored, then chairs, of course ignored. Quality assurance managers, you got it, ignored. This route then meant id followed guidelines so can now go to count court complants & HCP who govern social services, I’ve also informed family division. I’m general everyone hides under the umbrella of can’t intervene. However I’ve kept a chronological history of everything re everyone from the start. I’m quite educated which helps. I dont expect much help from anywhere to be honest but I will not give up. My heart, soul,body and mind was strong enough to create & nurture 4 lives & that same body will fight for them and win. It just takes one person.
Janine, Don’t forget my amateur advice. Make it clear to your barrister that you wish to appeal the decision if it goes against you on the grounds the case has been conducted incorrectly , perverting the course of justice etc. and ask him or her to inform the judge after the hearing is over.
Please tell us what happens and keep your chin up at all times. The barristers often agree with parents that there are grounds for appeal but then deny them one by refusing to sanction an application for legal funding. The Local Authorities and their lawyers rely on appeal being very ,very difficult almost impossible within 21 days.
How on earth do you KNOW this Angelo – that barristers ‘often’ agree there are grounds to appeal but refuse to sanction application for legal funding? Have you surveyed 100s of barristers?
Sorry but this is nonsense. If I am asked to advise on appeal and there are grounds I WILL SAY SO. Why on earth would I not? More work and money for me!!
But I am afraid in most cases on which I am asked to advise on appeal there are not grounds that would satisfy an appellate court. The test is a very difficult one to satisfy. I would have to convince the appellate court that the first instance court was WRONG. Given the wide discretion afforded to first instance judges – who have the benefit of seeing and hearing all the witnesses – the appellate court is reluctant to overturn a decision by a lower court.
Sarah, Thanks for your views. No ,I have not carried out a survey across hundreds of barristers. There is no need to ; I rely on my own experience and the testament of other parents who all describe similar circumstances. I give more respect to known facts and the claims of parents than ‘professional’ research.
Sorry but what I wrote was not nonsense although I would describe the legal situation as regards legal-funding for applications for leave to appeal as nonsensical. I repeat there are often good grounds for appeal but barristers are unable to appeal because the threshold they have to meet in order to obtain public legal-funding to finance a leave to appeal application is to difficult to satisfy. One barrister made that absolutely clear to a parent saying that unless she, as a barrister, thought the chances were 50-50 then she was unable to recommend an application for funding for LEAVE to do so because of commission rules. She went on to advise the family to apply for leave to appeal as self-litigants telling them that if leave were granted they should contact her again immediately because she would then have no hesitation in recommending an application to fund the actual appeal which was very winnable. I was not criticising barristers, who merely tell the truth but the system of appeals and legal funding.
As you say yourself , the test is a very difficult one to satisfy which is why I have repeatedly called for automatic LEAVE to appeal to the High Court in serious public law cases. In previous comments on this resource ,it has been said how the lower court Judge is granted such a wide discretion that almost every avenue is covered. One appellant quoted a judgment denying leave; the judge agreed that had all available evidence been revealed by the LA lawyers ,it is most unlikely he would have approved the adoption but said the decision must stand adding that the parents concerned had a case against their own lawyers. That is a fact!
Did you receive from me the directions issued by the Court Office that one cannot appeal just because one thinks the first instance court got it wrong? The only way to satisfy the very difficult test in order to convince an appellate court is to prove the decision was an irrational one being based on flawed process etc. This accords with the test for proportionality.
I presume also this is why the letter from the Prime-Minister’s office which I often raise as evidence states that an appeal is the only remedy when cases are conducted wrongly and due process is ignored.
Sarah, your third paragraph is not so far away from my views, as an ordinary parent. Also, you are against the constant heightening of the bar for legal-funding. I agree with you. What better way to support despotism and the contravention of the rights of our children than to stop vulnerable citizens getting legal representation for appeal applications?
Does any one have any research as to the number of applications for leave to appeal ? What percentage of applications for leave are made by self-litigants? I would guess most of them.