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Family Law

The leading authority on all aspects of family law

04 JUN 2014

View from the Foot of the Tower: Sharing our bewilderments

View from the Foot of the Tower: Sharing our bewilderments

'We had better share our bewilderments. By hiding them from each other we should not hide them from ourselves.' ― C.S. Lewis

Transparency in family court proceedings is now an uncorked genie; not only by virtue of the President’s guidance, but just the modern culture makes it something that could never be put back in the bottle. We live at a moment in history where the media and general public can not only be curious about conversations that took place between the Prime Minister and the President of the United States but demandto see transcripts and be indignant when they are not forthcoming.

Since February 2014, county court judgments on care proceedings and adoption cases have been published in anonymised format online. There is, inevitably, a degree of lag (one has to wait for the transcription, for the anonymisation process, for the judge to approve it, for it to be put up on Bailii) so that at any one time it is difficult to know how many more judgments are in the pipeline – some of the ones published have gone up remarkably quickly, others take a few weeks.

The published county court judgments since 22 April 2014 (at the time of writing 13) can all be found here:

http://www.bailii.org/ew/cases/EWFC/OJ/2014/

I thought that it might be a useful exercise to read them, and to see what they had to tell us. There doesn’t seem much point in publishing all of the judgments online unless people actually read them, and unless somebody actually tries to see if anything can be learned from them.

Thirteen is a small sample, but all relate to judgments given AFTER the Children and Families Act 2014 came into force (or at least the mandatory 26-week element), so I was interested in how many were done within that timeframe.

Also, I was interested in seeing whether the strong messages delivered by the Supreme Court and later the Court of Appeal about the need for robust and rigorous analysis in adoption cases had filtered through to county court judgments on the ground, or whether with time, this message had faded.

Anecdotally, the published county court judgments between February 2014 and 22 April 2014 appeared to me to be patchy in their application of the Re B-S ((Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035) message – many of the judgments quoted it at length and referred to it, but when it came to actually carrying out the exercises that Re B-S told the courts they would have to do, there was something of the ‘judicial window-dressing’ about those portions of the judgments. There was an element of racing through those elements and substituting the hackneyed and now redundant ‘Adoption is a draconian order’ stock phrases with newer and more acceptable formulations.

Purely anecdotally, when I read the judgments about adoption published on Bailii in that period; the judgments that really embraced Re B-S and conducted the rigorous scrutiny constituted about a third, another third made a half-hearted effort but didn’t quite get there, and the final third just substituted new judicial window-dressing phrases for the old ones. The final third were a considerable distance from being bullet-proof on appeal.

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I am pleased, therefore, to say that of the (admittedly small) sample of post 22 April published judgments, all of the cases that had to deal with adoption cases do properly grapple with the Re B-S analysis and carry out that robust exercise.

Of the cases where a Placement Order was sought (9), the court declined to make Placement Orders in four cases.

Again, this is a very small sample, and one doesn’t want to draw too much from it. There is a fundamental question post Re B-S, as to whether the bar has been genuinely raised for adoption (in which case one would expect eventually to be seeing more Placement Order applications turned down and eventually a recalibration with less applications being made once the appropriate level is found) or whether like a pedantic Maths teacher the Court of Appeal were saying that on adoptions the courts had got the right answer but needed to show their working-out better.

(My personal belief is that it was intended to be the former, but I suspect the prevalent view is that it was the latter.)

We may learn more when we see the official statistics of Placement Order applications made and granted in the first year post Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075.

In fact, of all of the applications that were brought by a local authority (10), the courts made orders other than what was sought by the local authority in half of the cases.

In four cases, adjournments were granted for further assessment, evidence or work, even though granting the adjournment would go beyond the 26 weeks. In none of the reported cases was an adjournment sought but refused.

Of the 10 judgments that relate to care proceedings, seven went beyond the 26-week mark (or would, taking into account those adjournments).

We have still not been told what proportion of care proceedings the Government expect to see being concluded within 26 weeks. From remarks that the President has consistently made, it is not anticipated that 26 weeks will suffice as an average,

“My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks.”

The expectation therefore is more that going beyond the 26-week period is an exceptional event (although of course you do not see that word anywhere within the revised s 32 of the Children Act 1989, the closest anything comes to it iss 32(7):‘When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification’.)(Emphasis added)

This is, of course, a small sample, but section 32(5) extensions were granted in 40% of the care applications within that sample, and 70% of the care applications went beyond the 26-week period before they were concluded.

It would be hard to envisage The Powers That Be feeling incredibly relaxed about a 40% rate of successful s 32(5) extension applications.

When I look at the reasons for the adjournments, they are all strong cases for adjournment, and in some a decision not to adjourn would have led to a decision that was plainly wrong. Nor do these cases where adjournment was granted represent freakish, unusual or peculiar scenarios. They represent decisions and situations that will be faced by courts up and down the country over the next few weeks and months.

Looking at the issues in the cases, neglect was the overwhelming concern in them, being an issue in 8 of the 13 cases. Physical injury was a concern in 4 of the 13. I had expected to see features of drugs or alcohol in many of the cases, but it only arose as a concern that made it into the judgment in one case.

None of the cases had an international element, or an issue over capacity.

It would be a valuable exercise to look again, once ALL of the judgments made by the county courts in care proceedings in say April, May and June 2014 are published and available to inspect. It may well be that these 13 are merely outliers and the overall position is very different.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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