Guidance – 1997 vintage – to justices…

Magistrate’s guidance to deal with reasons in children cases is dated November 2007 and based on guidance issued by Cazalet J in 1997 (reference below); and a Good Practice note which deals with detail ‘to be contained within facts and reasons’. Since 1997 and 2007 there have been a new set of rules, relevant case law (including other than in the children jurisdiction (Pauffley J refers to one such case Crinion)), a variety of new practice directions and PLOs, a new family law statute (Crime and Courts Act 2013 Sch 10: defines the family court) and Children and Families Bill nearly through Parliament. Pauffley J makes no obvious reference to the 1997/2007 guidance, nor to any other of the variety of factors which affect the common law as it impinges on the practices of the justices she was so cross with.

Sir James Munby P concluded his View from the President’s chambers: the beginning of the future (undated), Ministry of Justice (‘View 10’ in a series of 9, thus far) in the following minatory terms: ‘In Re NL (A child) (Appeal: Interim Care Order) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur.’ In the last article I explained what had happened: for an interim care order, based on slender local authority information (it barely answered the name of ‘evidence’), the justices issued a more or less pro forma set of ‘facts and reasons’. It should ‘never recur’: but what should happen instead? Or rather, we accept that what happened was wrong; but what does the President expect the justices to do about it?

The problem starts with the procedural rules and their essential unhelpfulness; and with the fact that such guidance as there is is elderly.  This note looks first at the law, especially procedural law. In summary the main sources are:

  • The lead act on dealing with children is Children Act 1989 (shortly to be amended by Children and Families Bill).
  • Procedure is in Family Procedure Rules 2010 Part 12, copious direction, and, in particular Practice Direction 12A; public law proceedings guide to case management: April 10 (none of which is prescribed by any clear primary or delegated legislation)
  • Magistrates’ Courts Act 1980 s 74 records that rules may provide for magistrates to ‘record’ reasons for a decision (interesting to note old-fashioned use of the term ‘record’ – most readers might expect this to mean in some electronic spoken version).
  • FPR 2010 r 27.2(3) requires magistrates to give written reasons (though a skim through Practice direction 12A finds no specific reference to how they are to do this, nor particularly in relation to interim care orders); and the ‘justice’s clerk’ must record the reasons. As will be seen, other courts and tribunals get assistance from the House of Lords and Privy Council on what they must do.
  • The Justice’s Clerk’s Society and the Magistrates’ Association has issued Guidance dated November 2007 (‘the Joint Guidance’)’_reasons.pdf. This is by reference to Cazalet J’s 1997 guidance in 1997.

Children Act 1989: interim care orders; court determination

Re NL concerned an interim care order. Children Act 1989 s 38(1) enables a court – the family court as is shortly to be – to make such an order, but only where, under s 38(2), there are ‘reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)’ (ie ‘significant harm’ etc). In Re NL the President, through Pauffley J at paras [57] – [71], told magistrates what not to do when it comes to decision-making; but said nothing of what they are expected to do. The Joint Guidance does this to an extent; though it needs updating: modern case law especially as to the common law on decision-making and more emphasis on human rights jurisprudence could be included (without making it over-technical).

Agreed facts: parens patraie jurisdiction

A problem with children proceedings is that the court has a parens patriae (country’s – ie people’s – parent: derived from old warship concepts) (‘PP’) element. This does not arise in other civil proceedings (in such proceedings, the parties can settle their own cases by agreement). Parties to children proceedings must generally seek court approval for their agreement; and, to differing degrees, the court must check what parties have agreed. That said, any court disposal will be concerned only with resolving the issues (ie by definition, contested) between the parties with the PP overlay in care/interim care order proceedings. Facts not in issue can be listed as agreed (see eg Re B (Agreed Findings of Fact) [1998] 2 FLR 968 (see below)).

The Joint Guidance refers to ‘facts not in dispute’, that these should be recorded and that the parties might be directed to agree these before any hearing (page 6). It is perhaps worth emphasising:

  • that in relation also to the facts to support a full care order, the same can apply; and
  • that more contentious facts can remain untried if the facts as agreed are sufficient to found the order required.

Thus in Re B (and this is not only referred to emphasise a high point in my career) Butler-Sloss and Thorpe LJJ were willing to accept agreed facts sufficient for a care order, without all facts being proved. Disputed poisoning allegations could be left over to a criminal trial and a 10 day care hearing came out of the list. As Butler-Sloss LJ explained (at p 968):

The difficulty that arose [here] was that the solicitor representing the mother, Mr Burrows, came up with an ingenious, if he will allow me to say so, solution for the immediate 10-day trial which is due to start tomorrow, which was that the mother recognised that she was in many senses an inadequate parent to L, quite separately from the allegations, which are strenuously resisted, that she administered salt to the younger child. She has recognised that the child has a development delay, particularly in speech; that he has not been altogether well cared for; that she has exhibited elements of poor parenting in various ways; [the judge recited the list written down and agreed at court]…

She went on (at 971):

But since the local authority want a supervision order and since there is sufficient evidence upon which a supervision order can properly be made, at the end of the day the child will be protected regardless of whether this significant issue is or is not litigated today. The judge said, and I am a little concerned about it, that he felt that he was in effect being asked to rubber-stamp an agreement between the parties. I do not see it myself as that. What we have here is an acceptance by the mother, which has been reduced to writing and now typed, of her inadequacies as a parent and that acceptance and indeed recognition of her inadequacies in areas other than in administration of salt is, I would have thought, a step forward for the mother, no doubt having had the assistance of some wise advice from her legal representative (italics added).

The determination: disposal of issues

Issues for the court are of fact and of opinion (‘experts’ are witnesses of opinion: Civil Evidence Act 1972 s 3); and of law applied to those facts. To reach its determination the court proceeds (at least in principle: at an interim stage the process may be abbreviated) as follows:

(1)   It applies the law (statute law and common law), if any is applicable, to the facts as found or agreed; and to any opinion evidence;

(2)   It exercises any discretion which the law permits (ie discretion is not inherent);

(3)   It considers any human rights questions in play.

The court will now have arrived at the point of decision-making. In the case of a Children Act 1989 proceedings, the decision must be recorded (Magistrates’ Courts Act 1980 s 74). The question which the next article in this series must answer is; ‘In exactly what terms may a magistrates’ court determination’ be recorded? Is it possible to reduce this to a template which can be used as a framework for the document the President expects the justices to produce (and see p 10 of the Joint Guidance)?

Yes, by all means it can, derived from the categorisation of issues above and as set out in the Joint Guidance, and applying the common law and human rights principles (as appropriate). And – I am sorry – what I thought was to be two articles when I started, now becomes three…


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