Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam) is a recent case in which Mrs Justice Pauffley is critical of a practice which had developed in a Family Proceedings Court of the Local Authority being expected to provide draft facts and reasons for use at hearings.
“Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd  EWCA Civ 587. As Sir Stephen Sedley observed,
“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”
69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”
A query arose in a recent case of a colleague as to whether or not a direction to provide Facts and Reasons in a case where an agreed private law order was to be made. In discussion we thought NL applied equally to agreed orders. The Family Proceedings Court agreed although it slows down the Court list, it must be right that all orders are properly justified by the Court.
What now for agreed threshold criteria?