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?
Re TG the President has made strong comments as regards to separate representation of parents in care proceedings when they are singing from the same hymn sheet.’This must stop,’ he states, considering the burden on the public purse. ‘Is this fair?’ We ask.
I was representing one of two parents who have schizo affective mental illness. Firstly: they both had criticism of a parenting assessment conducted by the local authority. Fair comments, such as the local authority not acknowledging their ability to show emotional warmth and show practical parenting skills as well as follow advice. Many positives in the contact with the very young baby sidelined by the local authority. They felt stigmatized due to their mental illnesses and wanted to have an independent social worker carry out a paper assessment which they hoped would be positive (unlikely under the circumstances of the case).
Nevertheless this exercise could have been carried out for relatively little expense on the legal aid certificate and well within time of the final hearing (an independent social worker had already been identified). All parties agreed that four days would be an appropriate listing for the final hearing. Given that there were several experts, psychologists and psychiatrists for both parents, two social workers,the Guardian Ad Litem, the author of the parenting assessment and two parents with mental illness that warranted taking matters slowly. The District Judge made a decision not to allow the initial viability paper assessment by the independent social worker (stating that he had a wealth of evidence before him and it would take matters no further).
However, possibly more concerning to counsel for both parents was that the Judge refused point blank to allow four days stating that the case could almost be dealt with on submissions. The Judge allowed only one day for the final hearing. Should the issue be appealed on the basis that the parents wish to fully contest the hearing and require four days to do so? Given that they are very vulnerable people shouldn’t the Judge have exercised his discretion in a way which accommodates the right of these parents to a fair trial and one where justice should be seen to be done? His major reason was that the baby with the background of mental illness will be difficult enough to place for adoption and the panel date should not be missed. In fact one panel date would have been missed but due to the listing of the final hearing another one would have been diarised well in advance of the final hearing and after all the evidence had been filed and served, therefore, arguably not dis-advantaging the young baby.