HIS HONOUR JUDGE CLIFFORD BELLAMY
DESIGNATED FAMILY JUDGE FOR LEICESTER
NEWSLETTER 9
2014 promises to be another challenging year. The single Family Court will be with
us in April. Locally, I believe we are ready for it. The Children and Families Bill will
soon complete its passage through Parliament, bringing significant changes to both
public law and private law Children Act proceedings. I believe we shall be ready for
the public law changes though there is still much to do so far as implementation of the
private law changes is concerned.
Not only do we have to cope with significant changes to the way we do things, we
also have to come to grips with those changes without any extra resources. Austerity
measures continue to bite. They affect every discipline involved in the Family Justice
System. More and more is being asked of us – and, indeed, expected of us. Sometimes
we may wonder whether the light at the end of the tunnel has been switched off.
Sometimes we may be afraid that any glimmer of light at the end of the tunnel is a
train heading towards us!
And yet, for my part, I begin 2014 with optimism. Within the various disciplines
involved in dealing with Children Act work in Leicester there is a great deal of
expertise and professionalism and an even greater degree of commitment and
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dedication. The response to the revised PLO has been very positive. There is an
eagerness to learn and an acceptance of the need to change. We are building a good
team spirit. In Leicester we really do believe that Every Child Matters. So there is
cause for optimism.
I wish you all a very happy New Year
Leicester Courts Carol Service
I am grateful to those of you who responded to my invitation to assist in organising a
Carol Service next Christmas. There will be a Carol Service in 2014. Watch this
space!
Training
Somewhat belatedly, I draw your attention to the training event which is taking place
on Thursday 9th January – ‘Proportionality and Speedy Decision-Making – Are They
Compatible?’ – which will be led by Will Tyler and Hannah Markham.
Invitation
There will also be a training event organised by our Local Family Justice Board’s
education sub-committee on Thursday 27th February from 5.00pm til 7.00pm in the
Council Chamber at the Town Hall. The topic is ‘Private Law: The New Child
Arrangements Programme’. Will Tyler will lead a seminar directed at all
professionals (including CAFCASS officers, social workers and mediators) who
practise in private law Children Act cases (in and out of Court) and will focus on the
detail and implications of the new Child Arrangements Programme. Admission is
free. CPD points will be available for solicitors and members of the Bar. This event is
open to mediators,
Please support both of these training events.
Police disclosure
On 1st January the 2013 Protocol and Good Practice Model for Disclosure of
information in cases of alleged child abuse and linked criminal and care directions
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hearings came into operation. So far as concerns the practice and procedure relating
to the disclosure of documents for use in care proceedings, the Protocol is the
touchstone. It must be followed.
I am aware that some Designated Family Judges in other parts of the country have
raised a concern about whether the Protocol applies to the practice and procedure
relating to police disclosure in private law proceedings as well as in public law
proceedings. My present view is that it does not. In my November newsletter I
attached locally agreed Guidance on obtaining information from Leicestershire Police
to determine eligibility for Legal Aid for, and for use in, private law Children Act
proceedings. That Guidance remains in place and should be followed.
In my December newsletter I attached a copy of a local Information Sharing
Agreement (ISA) entered into between Leicestershire Police, Leicestershire County
Council, Leicester City Council and Rutland District Council. Though the ISA is itself
a very recent document, questions have been raised about its status and its
compatibility with the national Protocol and Good Practice Model. Further
discussions are taking place. I will report back on progress in my next newsletter.
Bundles
In my last newsletter I highlighted an ongoing problem concerning court bundles and
proposed the inclusion of a standard order in all case management orders. I am
grateful for the feedback. I have been persuaded that what I hoped to achieve by
standard order can be achieved on a voluntary basis without the need for an order. I
have agreed to put that to the test. I hope that over the next three months there will be
a positive response to the concerns raised in my last newsletter. If there is, a standard
order such as that proposed will not be necessary. If there isn’t……!
Transparency
The final version of the President’s guidance concerning the publication of judgments
in family cases is still awaited. The importance of this issue was again highlighted by
the case of Re AA [2012] EWHC 4378 (COP) – see Claire Howell’s case law update
below. In December a decision wa handed down by the President of the Family
Division concerning the reporting of this case – see Re P (A Child) [2013] EWHC
4048 (Fam). The President does not say anything new about the need for
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transparency. What he does do is to re-state in yet stronger terms views he has
expressed repeatedly over the course of the last decade.
When the final version of the President’s guidance has been published I will address
in a subsequent newsletter the approach I propose to take locally.
Performance
CMS stats show that we ended 2013 with just one 2012 case still ‘live’. That case, a
High Court case, is listed for final hearing at the end of February. Of the 108 live
cases, only 20 of those cases started before we entered the pilot on 1st July. Given
where we were twelve months ago, that is a considerable achievement. However, we
must not be complacent. It is important that we try hard to try to get all of the prepilot cases completed by the time the statutory changes come into effect in April.
The average length of cases is reducing. In the twelve months to November 2013 the
average length of a care case was 35.5 weeks (County Court) and 32.3 weeks (Family
Proceedings Court). Those figures compare very favourably with the year to
November 2012 when the average length was 45.5 weeks (County Court) and 48.9
weeks (Family Proceedings Court).
We have now been in the pilot for more than 26 weeks. It was to be expected that
some cases would take longer than 26 weeks to complete and a small number of
extensions are now being granted. Court staff are keeping a record of those cases in
which the court grants an extension beyond 26 weeks. Over time, when there is
sufficient data, we will look at the reasons why cases have gone outside 26 weeks in
order to see whether there are any common themes and learning points.
Regrettably, the reason for extensions in some cases has been because of the problem
of lack of judge time. At the time of writing, the first date upon which we can list a 2,
3 or 4 day case is in the period 7th to 10th April. The first date available for a 5 day
case is 28th April. No doubt time will become available during February and March as
a result of cases coming out of the list, though it is not always possible to make use of
time which becomes available at short notice. It is very important, therefore, that
when you know that a hearing is not going to take the time allocated to it you inform
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the court at the earliest opportunity so that the time can be re-allocated to another
case.
I have concentrated on performance in public law cases because, at the moment, that
is the area in which there is the greatest pressure to improve. Next month I will give
some private law stats. It is now nine months since LASPO came into force. I would
be interested to hear your views (preferably based on fact rather than anecdote) as to
the impact it has had locally, particularly on length and complexity of hearings. If you
have stories you can properly share, do please pass them on to Justine Blackwell or
Emma Holyoak.
McKenzie Friends
One consequence of LASPO has been an increase in the use of McKenzie Friends.
Practitioners need to be fully conversant with the Practice Guidance: McKenzie
Friends (Civil and Family Courts) [2010] 2 FLR 962. The report of the Private Law
Working Group has recommended some limited relaxation of the Practice Guidance
proposing, in particular, that there should be no requirement for McKenzie Friends to
produce a short written CV or other written statement setting out their relevant
expertise and understanding of their role and of the need for confidentiality.
Some McKenzie Friends are experienced, competent and of great assistance to the
litigant (and as a result, also to the court). There are a few – a very small minority in
my experience – who are a positive hindrance both to the litigant they are supposed to
be assisting and to the litigation process. Just before Christmas I made a Civil
Restraint Order against a McKenzie Friend (see paragraph 17 of the Practice
Guidance). Such orders are exceptional. However, practitioners need to be aware of
the court’s powers.
Case law update
I am grateful to Claire Howell for the following case law update:
PUBLIC LAW
A Local Authority v DB & Others [2013] EWHC 4066 (Fam)
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Fact finding hearing to consider whether a child died as a result of non-accidental
injuries and if so, to consider who the perpetrator of the injuries was.
19 month old child was taken to hospital from his home where it was found that he
had suffered massive brain damage. Life support was withdrawn and he died 3 days
later. Mr Justice Keehan considered the law relating to fact findings which can be
summarised as follows:
1) The standard of proof is the balance of probabilities, nothing more, nothing less
- Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141
2) The medical expert evidence is but one part of the evidence available to the
court at a fact-finding - Re U; Re B
3) If it is clear that identification of the perpetrator is not possible, then the judge
should reach that conclusion - Re D (Care Proceedings: Preliminary Hearing)
[2009] 2 FLR 668
4) Re T (Abuse: Standard of Proof)[2004] EWCA Civ 558 [2004] 2 FLR 838 at
paragraph 33 Butler- Sloss P. said that "Evidence cannot be evaluated and
assessed in separate compartments. A judge in these difficult cases has to have
regard to the relevance of each piece of evidence to other evidence and to exercise
an overview of the totality of the evidence in order to come to the conclusion
whether the case put forward by the local authority has been made out to the
appropriate standard of proof."
5) "A person comes within the pool of possible perpetrators where the evidence
establishes that there is a 'likelihood or real possibility' that a given person
perpetrated the injuries in issue: North Yorkshire CC v. SA [2003] 2 FLR 849"
6) The need for judges to give themselves a Lucas direction when considering
witnesses credibility.
Keehan J was satisfied on the balance of probabilities that the child was a victim of
inflicted head trauma and that this was the only explanation for his injuries and
further, found that the injuries were caused by either the mother or her partner but was
unable to determine further who the perpetrator was.
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Re A (A Child) [2013] EWHC 3502 (Fam)
Judgment in a retrial of a fact-finding hearing in which guidance is given for such
hearings when one or other parent suffers from a learning disability.
The Father had successfully appealed to the Court of Appeal against a finding that his
child's head injury had been inflicted non-accidentally by him. The Court of Appeal
held that the judge at first instance had failed to make appropriate provision for the
father's learning difficulties and that, as a result, he had not received a fair hearing.
Baker J gave the following guidance when dealing with parents who suffer from a
learning disability:
(a) There is duty on those acting for the parent(s) to identify their client's need for
assistance in responding to questions and giving instructions, which must be
considered by representatives at the outset of their instruction. Any need for
support must be addressed at the earliest opportunity.
(b) When this is known prior to the outset of proceedings, on issuing, local
authorities should draw the issue of competence and capacity to the court's
attention. In turn, on the day following issue, the court will give directions for the
appointment of a litigation friend. The new PLO envisages that in those
circumstances the court should give directions for special measures at the case
management hearing to take place by day 12 of the proceedings.
(c) When the issue of capacity and competence is not identified at the outset, it
should be addressed fully at the case management hearing. At that hearing, those
representing the parents should apply for special measures, where the case for such
measures can be made out without any expert advice. Alternatively, where expert
advice is necessary to identify the existence or extent of the learning difficulties,
they should make an application in accordance with Part 25 of the FPR for an
expert to carry out an immediate assessment of the capacity and competence of the
party.
(d) The legal representatives should normally by the date of the case management
hearing identify an agency to assist their client to give evidence through an
intermediary or otherwise if the court concludes that such measures are required.
If the court is satisfied that an expert report is necessary to determine whether the
party lacks capacity or competence and/or as to the extent of any special measures
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required, it may direct a further case management hearing to take place once the
expert has reported so that detailed directions can then be given for the instruction
of an intermediary and/or such other assistance as may be necessary.
(e) So far as funding is concerned, there is a distinction between the cost of
obtaining a report from an expert as to capacity and competence, and the cost of
providing services from an intermediary. The former will, subject to the approval
of the legal aid agency, whereas the latter, as a type of interpretation service, will
be borne by the Court Service. Those representing the relevant party should
address these funding issues at the earliest opportunity. They should obtain prior
approval from the legal aid agency for the instruction of the expert and, as soon as
possible, give notice to Her Majesty's Courts and Tribunal Service that the services
of an intermediary are likely to be required.
Re HA [2013] EWHC 3634 (Fam)
Care proceedings in which the local authority sought a final care order and placement
order in respect of a mother’s fourth child.
The mother had 3 older children; two boys who had died and a girl already subject to
final care and placement orders. The court had previously found that the mother was
not responsible for the death of the boys but that she had neglected all three older
children. Her fourth child, HA was born during the previous proceedings.
All the assessments of the mother in respect of HA were negative, including a detailed
'Capacity to Change' assessment.
Baker J applied Re B, Re B-S. In his judgment, Baker J applies these decisions in a
structured way so as to show that he had applied the 'balance sheet' approach and
weighed up the pros and cons of the two alternative placements (adoption or a return
to the mother's care). He concluded unhesitatingly that HA's welfare required him to
make the care and placement orders.
Re A (Children) [2013] EWCA 1611
Appeal by Local Authority against care and placement orders where the judge had set
out in her judgment and recorded in the order that adoption would only be in the
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children’s best interests if the placement satisfied seven specific criteria, including no
other children in placement and continued direct sibling contact. Cross-appeal by the
mother against the placement orders in the event the LA’s appeal was successful.
The judge at first instance was considering the future of five children. The parents
accepted the children would not be returning to their care and, eventually, accepted
the plan for final care orders and long-term foster care for the older three boys. The
LA sought care and placement orders for the younger two boys, M and K (aged 6 and
3 1/2 by the time of the appeal); the Guardian recommended long-term foster care for
the younger two.
The evidence included that of a child psychologist who was clear that firstly, the two
boys M and K should not be separated and secondly, M was so attached to his older
siblings that he should continue to have direct sibling contact. There were issues
around M’s behaviour which at times was disturbed and difficult. Her evidence was
that as a pre-requisite to placement for adoption, prospective adopters to be suitable
must be two in number, energetic, free from attachment difficulties of their own,
experienced carers, fully appraised of the children's background, attachment
difficulties and placement needs for the duration of their minority and willing to
undergo specific training so that they will be able to cope with M in particular, there
must be no other children within the home and finally, ready, willing and able to
promote direct face to face contact with their brothers preferably four times per year
but at least a minimum of twice per year.
McFarlane LJ gave the leading judgment
LA’s appeal allowed - the judge's order in this case, together with the stipulations in
her judgment, fall well beyond the line that divides the role of the court and the role of
a local authority under a placement for adoption order and further, ordering that any
future applications should be reserved to herself amounted to overseeing the
implementation of the care plan in a manner which is impermissible.
However, the mother’s cross-appeal was also allowed and the placement order
discharged;. Applying Re B, adoption is only required if nothing more will do. There
was plainly evidence before the court that long-term fostering would do. Accordingly,
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the court did not have jurisdiction to dispense with parental consent to adoption since,
'[t]he court cannot dispense with the consent of any parent or guardian of a child to
the child being placed for adoption … unless the court is satisfied that … the welfare
of the child requires the consent to be dispensed with.' (ACA 2002, s 52(1)).
AND FINALLY, TO SET THE RECORD STRAIGHT....
COURT OF PROTECTION
Re AA [2012] EWHC 4378 (COP)
The case that was widely publicised in the tabloid press, claiming that a ‘secret court’
had forced the mother to have a caesarian. It actually concerned an application by a
NHS Trust under the Mental Capacity Act 2005 for a declaration that an expectant
mother lacked capacity to consent to medical treatment relating to the delivery
method of her baby, as well as in relation to her ante-natal and post-natal treatment.
The NHS Trust sought declarations that it was in AA's best interests for her baby to
be delivered by means of planned/elective caesarean section, under sedation by
general anaesthetic if deemed appropriate, and with the use of reasonable restraint if
deemed necessary and appropriate. The application was supported by expert evidence
from a consultant obstetrician and the mother’s own treating psychiatrist. The mother,
‘AA’ had been detained under the Mental Health Act as she was suffering form a
significant mental disorder, psychotic in nature. She was represented by the Official
Solicitor who did not oppose the application.
Mostyn J determined that, whilst not concerned with the unborn baby’s interests, the
risk of harm following a ruptured womb applied both to AA and her unborn child and
further, that it would be in AA’s best interests that her child should be born alive and
healthy and that such risks attendant should be avoided. He duly made a declaration
that AA lacked capacity in relation to this decision and the declarations as sought
regarding the delivery by caesarian etc. However he did suggest to the Local
Authority that it would be heavy handed to seek to remove the baby under Police
Protection but rather, that they should apply for an interim care order at a hearing
where AA could be represented by the OS. These declarations were made on 23rd
August 2012.
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Care Proceedings concluded on 1st February 2013 in Chelmsford County Court with
Care and Placement Orders being made. The mother has never appealed in the
English courts however, made a number of unsuccessful applications in the Italian
courts to have the child returned to her care.
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