GUIDANCE TO JUSTICES ON UNCONTESTED CHILDREN ORDERS

 

What a depressing document is Provision of Justices’ reasons in uncontested cases: revised guidance: March 2014, issued with approval of Sir James Munby P by Magistrates’ Association and Justices’ Clerks’ Society, after the comments of Pauffley J in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) Pauffley J (13 February 2014) http://www.bailii.org/ew/cases/EWHC/Fam/2014/270.html:

The main thrust of the guidance is to say that the magistrates must in every ‘uncontested’ case make up a set of reasons; though it does not explain why this is so essential where in every other civil court such a purist – and often unpractical approach is not required.

1                    Why cannot justices in ‘uncontested’ cases – which this is all about – accept parties’ agreed versions of facts and reasons? The document does not provide its own clear reasons. The Court of Appeal commended the course of agreed facts leading in Re B (Agreed Findings of Fact) [1998] 2 FLR 968 (Butler Sloss and Thorpe LJJ: not mentioned in the revised guidance) in the case of a final care order (and to ssave a ten-day hearing).

2                    The President gives no reasons for his bald assertions of what the justices must do as set out in (A) Public law bullet points (1) and (2); since judges adopt parties reasons all the time (eg there is no suggestion that when a district judge makes a consent order (see recently re arbitral awards: S v S [2014] EWHC 7 (Fam), Sir James Munby P)).

3                    The revised guidance overlooks proportionality in terms of overriding objective and time restraints in FPR 2010 r 1.1

4                    It is internally inconsistent. Bullet point (7) under ‘(A) Public law’ talks of ‘disputed’. This not what the guidance is concerned with. Of course where facts or anything else is contested reasons for going one way or the other must be stated.

5                    At bullet (3) of (B) Private law the document again strays into ‘imposed’ decisions, presumably after a contested hearing.

6                    There is no reflection on the fact that often an ‘agreed order’ will anyway be inconsistent with Children Act 1989 s 1(5) (bullet (4)).

7                    The final sentence of (2) – ‘advice’ (from whom?) that courts should not go behind agreements – must be taken to apply to advice privilege. It is a remarkable approach to the law in this area of fundamental principle (R v Derby Magistrates’ Court exp B [1996] 1 AC 487, [1996] 1 FLR 513).

In law it is unclear on what statutory basis this documents is issued (eg Constitutional Reform Act 2005); and what will be its authority when the new family court is in place on 22 April 2014.

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LETTER TO RESOLUTION CHAIR

For anyone gripped by the Resolution-Burrows correspondence, this went from me to Elizabeth Edwrads on 16 March 2014:

Dear Liz 

NC elections 2014

I have your letter of 7 March 2014 addressed to the membership. In the light of our discussion on 6 March 2014 I confirm that I agree unconditionally to take no further action against NC members. I should prefer to work from within the association for family law reform and legal aid policy changes – whether elected to NC or not. As I told you, that seems to me to be the honest way to deal with what has happened.

Your letter seems to invite me to ‘withdraw… legal action’. This I have now done. Can we agree that this information now be passed on the membership as soon as possible and in terms agreed between us? In the meantime, where members ask me to explain your letter of 7 March, I shall send them a copy of this note.

Yours

PAPER SUBMITTED TO RESOLUTION IN MAY 2013

There follows the text of a note submitted by me to Resolution National Committee in May 2013. It was rejected because, I was told, they could none of them work whHt me. The decision on the paper, considered in secret, was not minuted. 

NOTE from David Burrows

to Resolution NC

May I help, please…

1        Working party on introduction of family court

2        Helping to define family law reform policies for 2013-8

3        Life after LASPO: how to help members to help clients; and developing the Dunkirk defences

4        Prepare conference on LAW (perhaps as education/training and to open up a debate on continuing reform of the law on family breakdown)

Introduction: an ordinary member

I write as an ordinary member outside the mainstream of Resolution matters (eg I am very confused as to who is actually running Resolution nowadays, and who responsible for what day-to-day).

I am still well within the mainstream of what is going on in the world of family law reform (by which I mean reform the law of family breakdown), such as:

  • The intent to set up a unified family court by April next year
  • Decline of legal aid availability (and problems eg with instruction of opinion witnesses)
  • Further proposals to cut back on legal aid payments (with family lawyers demanding any quid pro quo? – eg reform of procedure?)
  • Developments in mediation, collaborative law and arbitration
  • Movements to reform child law procedure (known by MoJ as ‘family justice’)

I have a full-time job: writing, teaching/training and acting for a few people.

I do have time to commit to efforts for law reform.

Can I help through Resolution? For example, could I assist through a working party whose aim – for our members and for the people we serve – would be to work with MoJ in the setting up of the Family Courts system?

At the minute Liz tells me she only is dealing with the whole family courts subject – which is potentially massive (eg all Family Procedure Rules 2010 are to be reviewed and (to a degree) redrafted; the admin of the family court system will need to be defined and the position of magistrates as judges (hazy at present) to be defined – with 10 months to go….). 

Policies and a ‘five-year plan’

I am aware that, according to its website Resolution has no plans for law reform other than the three subjects there set out. These have been long overtaken by later events (eg Radmacher and earlier), or become largely totemic (‘no-fault’ divorce). Perhaps law reform is no longer a priority for Resolution? If so who decides? Where is the law of family breakdown going and can Resolution do anything?

There next year will be dominated by:

  • The Justice Secretary (‘Lord Chancellor’) wants to cut legal aid still more – soon after June 2013;
  • A new family court is to be in place in April 2014.

Short term, can anything be done at the delegated law level to improve things on legal aid and on any aspects of procedural reform; so…

Legal aid – life after LASPO

LASPO (the Act) is lost: the ‘justice’ minister (‘Hitler’) has already come around our Maginot line. We seem still to be revisiting the LASPO campaign (what people are getting, we ask LA?) Well yes; but surely we want to help our members to look at the people who aren’t getting legal aid but who would have before; and can we help our members to get paid to help them?

It would be helpful also to know (remember the research project SFLA ran as the Children Act 1989 came in? – something like that):

  • Who isn’t getting legal aid; and
  • Why not; and
  • What is being done (if anything) instead to help

And after the Maginot line has failed, preparations must be made to hold out at Dunkirk? This ‘justice’ minister is not going to stop at Belgium. A state-controlled legal service may follow; and/or repeal of Children Act 1989 ** (legal aid for children and those with PR in Part 4 proceedings). These may be not far away. Criminal legal aid can be cut back; why not wastrel parents as well (only the child need be represented, surely?). Straws must be in the Tory wind. Are we ready for that?

As the ‘justice’ minister takes us apart how are we re-grouping and preparing to take a real fight back to him? Is that in the 5 year plan, I wonder (I only ask)? Or are legal aid – poor people family lawyers – just going to have to lie down and leave it for the ‘JM’ to trample – jack-boots and all – all over us 

Policies and substantive law

Just a few thoughts:

1        Move on from pre-nups (see eg Radmacher?)? Surely the debate is now about negotiated agreements and arbitral awards

2        Confidentiality and privilege in children proceedings: DR Committee have started on this one (and we drafted a clause for the family justice bill, but it was too late by then)

3        Case management and interventionism (adversarial/inquisitorial) in children (and any other family) proceedings (I think this will need primary legislation); and the role of the mediator in defining issues?

4        Family law legal aid in 2015; and the government as banker (have we given up on that one? – was it forgotten in the LASPO overrunning of our Maginot line?)

There are four subjects for substantive law reform. And if the Government offered a family law bill tomorrow, what would Resolution want in it? 

Resolution – LAW: a conference

Could family LAWyers have an annual conference? We could talk about law – that precious thread which runs through all that we do and believe in….; and, it must be said, the subject which enables us to charge substantial fees to our clients (the people we advise and assist).

David Burrows

21 May 2013

PLACEMENT OF AN ENGLISH CHILD

Another re P (the Bulgarian child – see earlier today – was P at [2013] EWCA Civ 1216) is a placement order appeal (http://www.bailii.org/ew/cases/EWCA/Civ/2013/963.html). The stark differnce in the care taken over the two cases by differently constuted Courts of Appeal is palable – and truly depressing for the Bulgarian P and her family

  1. If I were to summarise the reasons why I take the view that we should allow the appeal, I would say that it is because the judge was wrong in that she failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis. Another judge, doing the exercise as it should be done, may or may not reach the same conclusion. Nothing that I say in this judgment should be taken as indicating a view one way or the other.

The fact that Black LJ’s later (by five days) judgement ran to 129 paras, whereas Ryder LJ left his at 39; and that in the Bulgarian case the parties were in person whilst in the later they had full representation, may also say something.

‘ADOPTION’ OF A BULGARIAN CHILD

English ‘family justice’ and its evasion of human rights

MP a two year old dual nationality Bulgarian child was adopted by order of Cambridge County Court (His Honour Judge Yelton) yesterday. (The judge gave leave to report his decision without the name of the child.) The child’s grandmother and her family in Bulgaria were offering a home to the little girl. The case exposes, perhaps, poor understanding of legal principle and questionable local authority evidence. The family were prevented from looking after her.

The case shows the state of application of legal principle within the English family justice system especially in relationto human rights legislation. In this context, relatively basic court rules seem to have been overlooked by judges at county court, High Court and Court of Appeal level (see [2013] EWCA Civ 1216).

By human rights is meant only that:

  • a grandmother of a two year old child was given no trial of her application before the court;
  • she was racially discriminated against (she is Bulgarian and, though trained to be a judge herself, she cannot read English);
  • her right to legal aid was not understood by judges and lawyers alike in the case; and
  • her right to a family life (a right for others re-emphasised by the Supreme Court in terms which most judges should be able to understand: Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075) was ignored by the English courts.

Family justice has for many years operated in private. If English judges had cosidered more carefull the letter and intent of the European Convention 1950, a small Bulgarian child might have been considered more equitably for return to her family in Bulgaria.

David Burrows

FAMILY COURT – judical vested interests rule; and will ruin

FC-Day-33 and it’s all very quiet. No confirmed amendment regs, yet. Children and Families Bill, still a bill. 22 April for FC-Day – I assume; and the sad new, brave new whimpery world of the new family court limps on to its opening.

I received my further copy of the Finer Report last week (an earlier copy is ‘archived’ – ie unable to be exhumed). Today’s likley family court, is tawdry indeed set against the interesting ideas put forward by Sir Morris and his commitee. Some forty year old ideas – and the contrast does not come down to a question of resources – look a lot more sprightly than the vested interest riven court ‘reform’ ideas of today.

And those vested interests of the judges, which if left untamed will eventually ruin the family court, can be seen to the fore in the bad-mannerd attitude of the President to his volunteer colleagues on the family court bench. That story – Re NL – festers on.