President’s criticism of justices reasons and interim care order procedure

The President of the Family Division Sir James Munby, has been musing monthly on his view of family law from his office window. In his most recent ‘View’ (number 10: undated – http://lexisweb.co.uk/blog/family/wp-content/uploads/2014/02/tenthviewfeb2014.pdf) he said: ‘In Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur.’

This comments was not explained in the View; but a reading of the case shows that Re NL http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html  at paras [57]-[71] was approved by Sir James. This relates to what Pauffley J (or Sir James) call ‘Compilation of the justices findings of fact and reasons’. In the judgement Pauffley J 14 paragraphs saying how naughty (that is her tone) magistrates have been; but says very little of what they could or should be doing when giving reasons in on an interim care order application. This will be considered – along with question of issue estoppel and so on – in a second article. 

Re NL: the facts

The case is mainly remarkable not only for drawing Sir James’s fire, but also for the way in which an expert’s report was commissioned and her ‘evidence’ adduced. Its underlay is, I would guess, a combination of three factors in addition to the facts and reasons question: local practice (varying form court to court) as to how interim care order applications are dealt with; the 26 week timetable (soon to be law: Children and Families Bill); and inadequacy (perhaps) of availability of opinion witnesses.

The facts of the case are, in context, sad but relatively unremarkable. NL was born on 31 October 2013 to a 32 year old mother, EL. The father took no part in the proceedings. NL is the eighth of EL’s children (seven more were by two different fathers). Hers was a difficult back-ground involving drink, drugs and separation from her older children (though contact was maintained). At a hearing on 8 November 2013, the justices had a letter from EL showing that she had support from a specialist resource service to care for NL; they heard evidence over the telephone from a chartered clinical psychologist who had been persuaded, or had been willing in this way, to provide an opinion (of sorts) supporting interim care. The justices adopted the ‘facts and reasons’ drafted by the local authority. An interim care order was made.

The judicial scapegoating of the justices and the lack of criticism of the President is remarkable: almost no comment as to the potentially and deeply unsatisfying nature (Art 6(1) compliant?) of the 26 week limit; nor of the Ministry of Justice’s (via the Legal Aid Agency) dumbing down pincer movement on the fees of experts. As chairman of Family Procedure Rules Committee and as a President who has thrown a heavy political hat (9 ‘Views’: number 9 does not seem to exist) into the tired family court ring, he is substantially responsible for procedure. His insouciance (via Pauffley J) is remarkable. 

Justices’ reasons: per Pauffley and NL

Pauffley J’s reasons for criticizing the justices’ reasons sets out the facts ([57]-[65]) and then takes the reader to European Convention 1950 Art 6(1): right to a fair trial. She talks of a largely ‘clandestine arrangement’ between local authority and court:


[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 local authority 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 every other party.

She goes on to draw attention to the Court of Appeal’s criticism of cut and paste judgements in Crinion & Anor v IG Markets Ltd [2013] EWCA Civ 587. To say this in such a context verges on hypocrisy, surely? Judges routinely (and who is to blame them, if they agree entirely with one side?) cut and paste skeleton arguments: why re-invent the wheel? The trick is to work in a few references to counter-arguments (and why they are rejected) as Sir Stephen Sedley explained in Crinion. Had the local authority lawyers been half-way alert to Crinion they would have allowed for this.

Where have all the lawyers’ gone?

And in all this: what is the justices’ legal adviser saying? What does counsel for the local authority say is the law? Do we hear the advocates for the parent or child objecting loudly to these badly behaved justices (well yes, the mother appealled)? For the most part (EL’s advocates apart) the lawyers gang up on the magistrates to say (as teachers used to do at school: this is ‘wrong’ and it ‘must stop at once and never happen again (sic)’. Yes really: at [69] Pauffley J actually says that; and to a group of grown-ups; to people who are volunteers; and to members of the community who cannot – in all fairness – be expected to be spoken to like that (and this is part of the judgement approved by the President).

Stepping aside from author as analyst to author as personal commentator: I remind the Family Division that their 40-year-ago predecessor, Sir Morris Finer presented to the then government the Report of the Committee on One-Parent Families July 1974 Cmnd 5629. After a seven year enquiry his committee recommended that in their ‘unified family court’ lay justices and lawyers (‘judges’) should sit together in children cases. I have reminded Sir James of the Finer report. Characteristically he does not reply; not do I know if he or his officials pay it any regard.

To hear the justices; and their reasons? – and how?

That the High Court judges should be so rude makes me truly ashamed. Who spoke up for the justices in Pauffley J’s court. Crucial to Art 6 (indeed to any administrative exercise which paras [57] – [71] is; and see second article) – is audi alterem partem: hear the other side. The High Court judges did not do this.

It gets worse. After all the criticism, they judges do not tell the justices what they should have done, or should now do. This is – for me at least – embarrassing. So, in the next passage I propose some suggestions: (a) what is the law; and (b) how it might be applied? I do this with all humility and caution: I am no longer (nor have been for many years) a child law specialist. I come at it as one who looks at the law – the maetwand of the law – as it inhabits justice and as it can sustain family court procedure.

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