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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