About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Thursday, 24 April 2014

Judge Joanne Harris

I am so very sorry to be writing this blog post and sorry too if this is how you learn the sad news that Judge Joanne Harris has died. I wonder how much more she could have borne of a life in which she was cruelly robbed of three of her great pleasures (see this piece she wrote recently for the Guardian) and for that reason and that reason only I am thankful it is over. Along with a huge number of friends and family members, I will miss her greatly and think of her often and she will remain the centre of a network which she knitted together and nurtured. I am grateful to those who took care of her in life and through her illness so that she knew she was loved. She was a great friend to me particularly during our years of studying together for the CPE & Bar (which often involved lots of her 3 great pleasures - hours of heated legal debate (which she usually won, especially if it involved land law), a bottle of red wine & a slice or two of her piece de resistance - spanakopita pie!). She was kind, funny and sharp, qualities that made her a much respected and liked tribunal as well as friend. Her strength of character was sadly tested by a number of challenging life events and it was not found wanting. Despite this she managed always to have compassion for those who were not so capable. I take inspiration from her example. Life is short but it is for living. Don't waste a second and fill it with love.

Friday, 18 April 2014

Reform School

"I have no desire whatever to reform myself. My only desire is to reform people who try to reform me. And I believe that the only way to reform people is to kill 'em.”

You may come to the view that this is the philosophy underpinning the quick, smooth & efficient family justice reforms.

Here are some resources which might help.

Children & Families Act 2014

Guide to the new statutory instruments & where to find them

The revised Public Law Outline

Practice Direction on Bundles

Article on Family Law Week by Jennifer Kotilaine re public law reforms

John Bolch's comprehensive links page over on Family Lore

Zoe White's Summary on Marilyn Stowe's blog

Law Society Family Court Resources Page

Geraldine Morris's 10 Things You Need to Know about Family Law Reform

Preparation for the Single Family Court

What You Need to Know about the new Family Court Forms by Kirstie Gibson

Family Law Hub's Guide to the Family Justice Reforms for Divorce & Finance

Revised FAS form

Comments re bundles on Suesspicious Minds

Wednesday, 19 March 2014

Exceptional public funding

Picking up on my last post, in D v K and B [2014] EWHC 700 the court has asked that the Legal Aid Agency think again about treating the case as exceptional and granting public funding. Apparently even the following points have not yet persuaded them:


i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother's allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event. In March this issue was being investigated further.

ix) As to the position of the Guardian's representative everything that I have said about the position of the judge applies in at least equal measure to the guardian's solicitor if not more so. The guardian's statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children's solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child's solicitor could be expected to conduct cross examination on behalf of this Father.

Crossing the lines: Re C (2013) - procedural fairness


I thought I would offer a reminder about a case which has recently become very dear to my heart: Re C 2013 EWCA Civ 1412 and which gave rise to a number of interesting points about the way in which litigants in person could be better supported. It also shows that lines will be considered to be crossed when complainants in criminal proceedings will be compromised as independent experts

Incidentally this is one of the few cases last year where public funding was granted on an exceptional basis. Needless to say the father did not get public funding for any of the follow up:

Ryder LJ found that there had been a number of procedural irregularities throughout the proceedings which caused the decision to be unjust and wrong:

* Evidence that was adduced orally at a without notice hearing was not recorded on the face of the order, nor was a direction made that that evidence be transcribed or contained in a statement to be served on the respondent. Rule 18.10(2) FPR 2010 requires the service of evidence on a respondent in support of a without notice application unless the court orders otherwise. A respondent's right to set aside or vary a without notice order must be contained in a statement on the order (rule 18.10(3) ) which was not contained in the without notice order made.

* No explanation was given as to why the respondent's right to set aside or vary the without notice order was constrained to having to give 24 hours' notice.

* There is a need for exceptional urgency to justify a without notice order being made. There was no evidence within these proceedings of what was the pleaded exceptional urgency.

* The pre-application protocol for mediation information and assessment (PD3A) was ignored in its entirety. This protocol is not optional.

* The family court advisor became a complainant in criminal proceedings, as a result of the father's behaviour, following which he was arrested and charged with offences under section 4 of the Public Order Act 1986. It was wholly inappropriate for the family court advisor to continue to advise within the proceedings.

* The family court advisor filed a report which detailed allegations of fact by the mother against the father previously unknown to the court. It read as if the allegations were true and there was no doubt that the family court advisor believed them to be true. It was not highlighted that the facts had not been established by way of a fact finding.

* On the day of the contested welfare hearing the family court advisor filed and served a chronology of events without notice of intending to do so and without direction by the court. It was a detailed schedule of hearsay evidence. It should not have been admitted without argument as it was highly prejudicial and of questionable probative value.

* At the contested welfare hearing the family court advisor gave evidence from behind a screen. Although it was not inconceivable that a professional witness might require such assistance, an application on notice to the parties with full reasons as to why this was required should have been made.

* The assumption of alleged facts against the father when no fact finding exercise had been conducted resulted in the judge's welfare evaluation being based on a false premise.

Friday, 28 February 2014

RE N-L Post 3 of 3: Pauffley J on triage assessments and justice before speed

In which Pauffley J criticises the manner of obtaining evidence from an independent expert by means of a paper triage assessment commissioned in haste and without the expert meeting the mother:

29. My reading of the papers prior to the hearing on 28th January revealed causes for considerable anxiety as to whether there had been a fair and appropriate assessment exercise in relation to the mother's abilities to look after NL.

30. The letter of instruction to Dr van Rooyen invited her to undertake "a triage psychological assessment in respect of (the mother) by reading the papers, liaising with the Practice Manager and liaising with [the resource] (as necessary) and report upon (her) findings." She was asked, insofar as she was able, to provide her view in regards to (the mother's) history of drug use, the current treatment she's receiving and her prognosis for abstinence in the future." The second question of Dr van Rooyen invited her commentary upon what (the mother) would need to demonstrate in order to care for NL long term and her progress in achieving these goals. She was also asked to comment upon further advisable treatment and likely timescales.

31. There was no suggestion that it might be necessary for Dr van Rooyen to meet with the mother in order to provide her report. The terms of the letter make clear that what was being requested was a paper assessment supplemented by a telephone discussion with the Practice Manager, [named]. The mother, I should say, has never met [the Practice Manager].

32. Although it had been thought, on the part of the local authority at least, that it might be advisable for Dr van Rooyen to discuss the case with [the resource], her report makes clear she did not avail herself of that opportunity. In evidence, she said, according to the note, "I hadn't because of tight timetable."

33. That last piece of information leads on to consideration of exactly how and within what period, Dr van Rooyen's report came to be prepared. The letter of instruction is dated 31st October 2013. In the section headed "Timetable," it is recorded that the local authority's lead Solicitor understands that Dr van Rooyen was "able to file (her) report by 5pm on Thursday 31st October," that same day. The first hearing in the Family Proceedings court was scheduled for 1st November.

Dr van Rooyen's involvement – fundamental flaws
34. I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen's involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

35. It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. I struggle to understand how Dr van Rooyen's apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the resource].

36. To my mind, it is quite simply unacceptable for an 'independent' expert to be instructed in the way Dr van Rooyen was – to conduct such a scant inquiry in preparation for a hearing which was to have such wide ranging consequences for the child.


Rationale for the instruction
37. The reason why the local authority acted as it did, requesting Dr van Rooyen's assistance in preparation for the 1st November hearing, may be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. I have not conducted any kind of inquiry into exactly why the instruction for a "Triage Assessment" occurred but gained the distinct impression that this case is not an isolated instance, rather that similar practices have been applied in other proceedings locally so as to assist in ensuring the case achieves a conclusion within its allotted timeframe.

Discussion
38. Albeit in the context of care proceedings where the care plan is for adoption, the President has made it abundantly clear that justice must not be subverted by the requirement that public law cases be concluded within 26 weeks. In Re B-S (Children) [2013] EWCA Civ 1146 he said – "Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied."

39. More recently, in his 'View from the President's Chambers (7)' entitled "The process of reform, changing cultures" the President reiterated that message saying, "We must always remember that the PLO is a means of achieving justice and the best outcomes for children and, wherever possible, their families. It is not, and must never be allowed to become, a straightjacket, least of all if rigorous adherence to an inflexible timetable risks putting justice in jeopardy."

40. My enduring anxiety in relation to this case is that in the frenzy of activity which preceded the first hearing in the Family Proceedings court, there was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.