The case of a Judge, a barrister, some bad weather and the right to that fundamental thing: A FAIR HEARING

Re G (A Child) [2015] EWCA Civ 834

BLACK LJ Court of Appeal, Sullivan, Black LJJ, Sir Colin Rimer, 28 July 2015)

In case you some how managed to miss it Re G is worth a revisit for all of those who know and recognise that need for a fair hearing before a fair tribunal.   And of course for all of those who have seen in action just what unfairness can look like. Be bold , Re G, the idea of justice and those Court of Appeal Judges are there to help.

Re G concerned Private law children proceedings – Contact – Fact-finding hearing – Appeal from findings – Whether the judge had prejudiced the exploration of the evidence. The mother’s appeal was allowed, the findings of fact made by the judge were set aside and the case was remitted for rehearing. In case anyone hadn’t heard already the appeal was against decision of Her Honour Judge Pearl.

LJ Black gave the lead judgement and set out a great deal of the transcript from the hearing below. Here are some of the exchanges to give you the flavour of the hearing.

Note the main players;

Ms Toch – the barrister for the mother in the case who lives in Kent and really had quite a few bad days in court through,it would seem, no fault of her own.

Her Honour Judge Pearl : The Judge who thinks we can afford and are able to travel up to court hearings the night before, and

Mr Cameron the slightly less put upon barrister for the Father.

“Ms Toch tried to explain what the mother’s continuing concerns were but the judge was impatient, intervening to say:

“Yes or no? Answer the question please. I have read the section 47 report. Does your client accept what has just been submitted to me on behalf of the father, that that deal with those issues of the care given by the father to G during contact? Yes or no?”

“[27] The transcript does not convey the degree of pressure put by the judge on Ms Toch at this point in the proceedings.”

“[30] Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.”

“[38] As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.”

Thank you LJ Black and to conclude just because a Judge is being unfair to everyone doesn’t mean the hearing is fair for your client.

n

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Austere Justice

I was in Uxbridge County Court on Friday for an FDR. We managed to agree a final order and went into see the judge. The judge duly approved the order and signed it and then asked us if we wanted photocopies, which we did. He rang for the usher but got no reply. We waited. The judge informed us that due to cuts,  there was only one usher working at the court, and tried ringing for the usher, but again got no reply (she was no doubt busy with the 3 other courts upstairs. The judge amused us with a few anecdotes, and tried once more, but again no answer. Eventually he said he would go and photocopy the orders himself and meet us at the counter, which was unmanned. We left court and waited at the counter. There were a couple of members of the public at the counter hoping to be able to make inquiries, but all the blinds were  closed. Eventually one of the blinds was raised. It was the judge with our photo copied orders, which he handed to us.  The members of the public walked up to the counter, but by the time they got there, the judge had pulled down the blind in order to return to court for his next hearing. One of the member’s of the public rolled their eyeballs as if to say “call this justice?” With 40 per cent cuts on the horizon, how much longer will it be before judges are expected to check for metal objects at the court door, along with their photocopying and judicial duties ?

Chris McWatters

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Sir James Munby, President of the Family Division, Practice Direction 27a and ‘the Delinquents’

All Family practitioners should now be familiar with the case of, In the matter of L (A Child) 2015 EWFC 15 (26 February 2015) FPR 2010. In summary this is about Practice Direction 27a – Family Proceedings: Court Bundles (universal practice to be applied in the High Court and Family Court). It provides guidance on court bundles that should be provided to a court for a hearing. A reminder of the main points,

‘ It (the Bundle) should be provided by the party in the position of applicant at the hearing (Para 3)
The Bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing (Para 4)
There should be a case summary and a position statement from each party at the commencement of the bundle (4.3)
Where the bundle is re lodged it should be updated (4.8)
It should be A4 in size, printed on one side only and not be more than 350 pages (5)
It should be with the court not less than 4 days before the hearing and with counsel instructed not less than 3 working days before the hearing (6)
No later than 3pm the day before the hearing the Judges clerk hearing the matter should be emailed and the applicant should ascertain that the bundle has been received (8)
Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a ‘wasted costs order or some other adverse costs order’ (12.1).’

In the case of Re L I think Sir Munby got very “annoyed”, “perturbed “, or “not happy” in a case where PD27A had not been followed and said, inter alia, the following

‘My experience, shared by far too many of my brethren, is that in this respect, as indeed in too many other respects, PD27A is frequently, indeed in some places routinely, ignored.’ (Para 8) and went on,

‘This endemic failure of the professions to comply with PD27A must end, and it must end now. Fifteen years of default are enough. From now on:
i) Defaulters can have no complaint if they are exposed, and they should expect to be exposed, to public condemnation in judgments in which they are named.
ii) Defaulter may find themselves exposed to financial penalties..
iii) Defaulters may find themselves exposed to ..sanction..

The Profession need to recognize that enough is enough. It is no use the court continuing to feebly issue empty threats. From now on delinquents can expect to find themselves subject to effective sanctions…..If despite this final wake – up call, matters do not improve I may be driven to consider setting up the special delinquents court suggested by Mostyn J. ‘ (Para 23)’

Of course the President of the Family Division and his Brethren should, like us professionals committed to family justice, condemn avoidable waste and delay in a case.

But at a time when many professionals are leaving practice because it is no longer tenable as the cuts to legal aid bite. And at a time when so many people face no access to justice at all or have to attend hearings in person, I think the following Practice Directions would be really helpful for those committed to legally aided work.

Practice Direction 1 Dealing Fairly With Those In Despair As They Attempt to Help Deliver ‘Justice’ In An Under Resourced and Overwhelmed Situation .

1. If the Court is going to keep you waiting for hours through no fault of your own it will apologise or express some sympathy and in certain situations meet your extra expenses, including any childcare costs.
2. The Court recognise that one of the main bars to women’s equal participation in public and political life is child care and as such would make all reasonable adjustments to avoid a punitive approach to its work.
3. The Court will be sympathetic to the impossibility of some demands in some cases as life sometimes means that documents just couldn’t get there in a timely fashion. Clients are late, too depressed to attend until the last minute and some just overwhelmed by the inequalities they face to enable you to draft their position until they attend at the last minute.
4. Some offices are so overwhelmed and underfunded that they just don’t have capacity to email before 3pm on the day of the hearing.
5. The Court appreciates the valiant efforts of most legal aid practitioners at a time when their efforts are subject to continuing cuts and uncertainty.

Rebekah Wilson
Views are the authors alone

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Shaken Baby Syndrome – A false and flawed premise ?

A group of medical experts and family justice professionals have published an open letter emphasising the gaps in scientific evidence in non accidental head injury cases where a baby has suffered the triad of injuries – retinal haemorrhages, subdural haemorrhages and ischaemic encephalopathy – otherwise commonly referred to as shaken baby syndrome SBS. It urges the court to follow the course taken by Lord JusticeJudge in the Angela Cannings appeal where he concluded that in cases where the evidence relies on high ranking medical experts who disagree with one another, it is often unwise to proceed.

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Egregious Failures by a Local Authority : Damages under the Human Rights Act in Care Proceedings: Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam)

On 30 January 2015 Mr Justice Keehan handed down his judgment in Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam). It is another case where the Local Authority having breached parties Articles 6 and 8 rights in care proceedings the court awarded damages within care proceedings.

This case concerned a newborn baby who suffered months of delay after birth. Eventually placed with grandparents he is noted to be thriving in their care. Para’s 32 and 33 are worth highlighting to any child law practitioners and serve as a helpful reminder of the remedy of damages for breaches of the Human Rights Act within care proceedings,

“32. Despite the appalling conduct of the local authority hitherto, it is right that I record that at the final hearing the local authority conceded it was liable in respect of both claims. It accepted it had acted in violation of DS’s and the mother’s article 6 and article 8 convention rights as follows:

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.



(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights.



(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.



(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.



(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.



(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

33. The local authority agreed to pay damages:

i) to DS in the sum of £12,000;
ii) to the mother in the sum of £4,000; and
iii) to pay a sum of £1000 to the maternal grandparents to assist them in their care of DS. 
I was helpfully referred to a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child’s and/or a parent’s human rights. Having reviewed those authorities I am entirely satisfied that the damages offered by the local authority in this case are entirely appropriate. 
”

Rebekah Wilson
Barrister Garden Court Chambers
Views expressed are the authors alone

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Judicial Review on domestic violence evidence requirements fails: 
R (on the application of Rights of Women) v The Secretary of State for Justice [2015] EWHC 35 (Admin)

Lord Justice Fulford and Mrs Justice Lang DBE have rejected Rights of Womens much needed challenge against the regulations (regulation 33) on domestic violence. For practitioners who work in the field of domestic violence and for people who care about gender based violence this is a disappointing and somewhat confusing blow.

In summary
Rights of Women submitted that ‘regulation 33 is ultra vires section 12(2) of LASPO 2012. It only empowers the Defendant to “make provision for the making and withdrawing of determinations” under section 9, which sets out the criteria for eligibility, by reference to paragraph 12 of Schedule 1. It is apparent from the types of provision listed in section 12(3) that the regulations are intended to be procedural in nature. However, regulation 33 imposes inflexible evidential requirements which go beyond the eligibility criteria in section 9 and paragraph 12, and which have the effect of wrongly excluding applicants from the scope of legal aid.’

Further Rights of Women submitted that, ‘regulation 33 imposes requirements or conditions which thwart or frustrate the statutory purpose, applying the principle in Padfield v. Minister of Agriculture [1968] AC 997. It impairs the right of access to legal advice and the courts in family proceedings by women (and their children) who have suffered physical and/or psychological harm as a result of domestic violence.’

Both arguments were rejected by the Court. Although the arguments were rejected the Court did find, inter alia,

“I am satisfied that the Claimant has shown a good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33. Typically, victims are excluded in circumstances where serious domestic violence led to a complete breakdown of the relationship, and then, more than 24 months later, there is an application by the perpetrator of the violence for contact with a child of the family, or ongoing contact arrangements break down. By the date of application for legal aid, their evidence of domestic violence is older than 24 months, but they remain fearful of their former partner.” and

“Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address.”

So the court have acknowledged that there are victims of domestic violence who should be able to have access to legal aid but can’t. They have said that the Government and parliament should address this problem.

The Court found that the lack of legal aid is not an actual bar to accessing the courts but of course for a victim of domestic violence having no representation and having to challenge their perpetrator in person serves as a de facto bar.

Lets hope that Rights of Women can get the support they need to pursue this case further.

Rebekah Wilson
Barrister Garden Court Chambers
(views expressed are the authors alone)

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Make Our Rights Reality – Young People Give Voice To Their Need For Access To Justice

Anyone interested in the rights of young people should please take a moment to watch this powerful video made by young people, https://www.youtube.com/watch?v=O-WSZE4-dN4 In December 2014 JustRights ( JustRights is a coalition of charities campaigning for fair access to advice, advocacy and legal representation for children and young people  http://justrights.org.uk) launched the Make Our Rights Reality campaign which includes a manifesto and petition. Their  manifesto calls on the Government to improve young people’s access to the information and advice that we need to become active, responsible citizens. #MakeOurRightsReality Please watch the video, share it and  petition for change https://www.change.org/p/make-our-rig…

Rebekah Wilson
Views are the authors alone

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