Assessment on an interim care application
The first reported case I have seen since the family court came into operation today is Re S (A Child)  EWCC B44 (Fam). It finds Sir James Munby P sitting in Bournemouth County Court dealing with a s 38(6) interim care assessment. The case had taken over five months to come on. I fear it shows the President, perhaps, failing to see that he is acting as judge in respect of legislation he has promoted; and forgetting that as an administrator he has set up the system which he uses – perhaps – ultimately to block contact between a mother and her child. These are strong words. The record, as it seems to me, supports them.
I emphasise that ‘perhaps’: no-one will know of course. The mother exhibited a variety of signs of hopelessness as a mother (summarised in  and ); but she convinced at least two medical experts that she was worth working with over the assessment. Sir James has firmly pinned his autocratic colours to the ‘family justice’ mast (indeed he quotes himself, his ideas and his plans copiously in this judgement); so was this mother sacrificed on the rickety alter of the ‘family justice’ (meaning children law)? As will be seen, in his enthusiasm for the new law, Sir James fails to follow it – and other aspects of the common and European Convention 1950 law – in important respects.
The new Children Act 1989 s 38(6)
The new law does not come into operation till today; Sir James dealt with the case on 25 March 2004 more or less as if the new law applied. There can be no criticism of that. He was considering an application by a mother for an assessment under Children Act 1989 s 38(6) which for the purposes of the application before him reads:
Where the court makes an interim care order …, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …
This provision is enhanced, from 22 April 2014, as amended by Children and Families Act 2014 s 13 (which relates to expert evidence) to provide that an assessment may only be ordered where it ‘is necessary … to resolve the proceedings justly’ (s 38(7A)). This is followed (s 38(7B)) by a checklist of factors to which the court is expected ‘in particular’ to have regard.
Sir James drew attention to the fact that the case had taken five months to come on before him (para ), without any apology to the mother at the delay (which must in part have been caused by finding a date when he could deal with the matter as a test case). The judgement does not record when the mother made her s 38(6) application; but it must have been before 14 January 2014 (nearly three months after issue of the care application). On that date the case came first before a circuit judge for case management.
Sir James explains the 6-month rule, and that this was – now is – statutory (CFA 2014 s 14). The provision that a care case must come on ‘in any event within twenty-six weeks’ (s 14(1)(a)(ii)) is not ‘some mere aspiration or target’, he says; and then quotes (at ) his own somewhat Churchillian fenestral message (his first ‘View from [his] chambers’  Fam Law 548: by definition this is not an emission prepared after argument has been heard) as follows:
My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks [my emphasis].
But ‘compromising’ (see italics above) is what a judge must be. Resolving a case ‘justly’ (see s 38(7A)) involves compromise. So how does Sir James deal with the case and the unexplained delay? Of the independent opinion witnesses at this stage there were three, all doctors. Two were in favour of the mother having the assessment; and one was neutral, even slightly – though not unequivocally – against. From the mother’s point of view it was two to one in her favour, even 2.5 to 0.5. The common law requires that any judge who disagrees with an expert, should explain why in his/her judgement. Sir James neither reminds himself of the law on this, still less explains his reason for disagreement with his court’s experts.
A statutory check-list: Children Act 1989 s 38(7B)
As mentioned above, the new s 38(7B) provides a check-list for a judge when s/he considers an application under s 38(6) (as with the mother’s application here). Sir James sets out the check-list (at ), but makes no further reference to it. He concludes that he already has enough evidence on which to make up his mind (at ), and then ignores it or goes against it, in the case of the expert evidence (see previous paragraph).
He looks at the circumstances in which ‘the 26 week time limit’ (at ) may be breached, and recalls that CA 1989 s 32(5) now reads:
(5) A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.
He suggests ‘three forensic contexts’ in which a breach of the 26 weeks might be permitted (at ): (1) where it is clear from the start that the period may overrun (eg where very difficult issues were clear from the start, or a parent has particular disabilities); (2) where something unexpected emerges; and (3) where an error by one of the parties makes an overrun inevitable. He explains that an example of (1) might be the FDAC (‘Family Drug and Alcohol Court’) type of case based on ‘problem solving by a specialist team’. To work this must be realistic from the start. His conclusion therefore was:
 … appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale [emphasis internal]?
Judicial appraisal: evidence based
His appraisal must be ‘evidence based’ (as is to be expected); but we know that he was not invited – as he puts it – ‘to hear evidence from the mother’ (at ); nor it seems, before making this finding, did he ask for her to provide any viva voce evidence. The evidence-based nature of any finding by the court is the route of the findings in this case; and Sir James set up this mother not to have a hope as far as that was concerned.
Of the requirement that a court may direct an assessment only if necessary, Sir James says:
 For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6)…
He takes for granted that a court will act ‘justly’ – ‘for it goes without saying that any court must always act justly rather than unjustly’. It is truly depressing to record, that I am not so sanguine:
(1) Sir James failed to give this mother a chance to tell him about where she had got to in her life; so he had not ‘seen the witness’ nor had any ‘evidence based’ means of assessing her. He did not, it seems, even ask for it;
(2) He did not obey the common law rule of explaining why he differed from the majority of the independent experts;
(3) He ignored the s 38(7A) checklist – though not law then, it could have provided him with a useful cross check to his decision (eg ‘cost of the … assessment’; welfare of a child likely to be removed from her family for ever (see Adoption and Children Act 2002 s 1(4): neither of these are mentioned); and
(4) The disposal in this case is riven with the need to balance the rights of the mother (to a fair trial) and the mother and child’s right to respect for their family life (European Convention 1950 Art 8) and to ensure that the grave interference almost inevitable as a result of this decision is justified.
In 1791 the French Legislative Assembly incorporated a provision – the ‘Self-Denying Ordinance’ – that no member of that Assembly could stand again, so that they would not be the interpreters of the laws they had passed. This was shortly after the 1776 US Constitution which fully recognised the separation of powers: legislature, executive and judiciary. Sir James is fond of quoting himself. That represents the common law, and – whatever it says of his modesty – is entirely permissible. However, to adjudicate upon schemes which you have set up administratively, have as near as makes little difference legislated into effect (not Children and Families Act 2014 but many of the rules, practice directions and guidance which comprise the new scheme, are very strongly influenced – if not actually written – by Sir James) and then to adjudicate upon them, suggests an unhappy view of the separation of powers.