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11 Jun

In Re NL(A Child)(Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Mrs Justice Pauffley dealt with an appeal in a complex case in which lay justices had made an interim care order with a care plan for separation. Because the case raised important issues of practice and procedure that needed to be investigated, it was almost 3 weeks after the appeal hearing had concluded that Pauffley J was finally handed down judgment.

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"Do not wait for he Last Judgement. It happens everyday" Albert Camus, The Fall (1956)

In Re NL(A Child)(Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Mrs Justice Pauffley dealt with an appeal in a complex case in which lay justices had made an interim care order with a care plan for separation. Because the case raised important issues of practice and procedure that needed to be investigated, it was almost 3 weeks after the appeal hearing had concluded that Pauffley J was finally handed down judgment.

The factual matrix of the case is largely irrelevant and all you need to know about it is that the local authority issued proceedings for a care order and interim care order in relation to a baby girl (who was only a few days old) on the basis of concerns about mother’s history. The matter came before the justices on 1st November 2013 when a ‘holding’ ICO was made, the mother neither consenting to nor opposing the making of such an order. The justices reasons were, ‘comprehensive,’ and contained, ‘a very detailed analysis of the Interim Threshold Criteria as well as the Welfare Checklist.’ If that was not enough to raise your suspicions, then I am pleased to be able to tell you that I have millions of pounds in secret offshore account and a lot of it can be yours in exchange for your credit card details and PIN number.

The matter came back before the justices on 7th November 2013 when the court heard evidence from Dr Celest van Rooyen, a chartered clinical psychologist, on the telephone. Dr van Rooyen had prepared a report on mother and this was available to the court. Unfortunately, Dr van Rooyen had not been instructed to meet with the mother before writing her report. Although parts of the report were positive, Dr van Rooyen expressed considerable concern about the mother’s ability to care for the baby. On that basis, the justices made an interim care order and the baby was removed from the mother’s care and placed with foster parents near Reading. The mother appealed and the matter was listed before Pauffley J in the Reading District Registry.

On perusing the appeal bundle, Pauffley J noticed that, as well as the comprehensive justices’ reasons mentioned above, there was also a draft version of them. Pauffley J knew it was a draft because there were gaps for dates and other information that had been duly completed in the final version. Her interest comprehensively piqued, Pauffley J disguised herself as Jessica Fletcher and went sleuthing.

What she eventually discovered was that not only were parties (in this case, the local authority) drafting justices’ reasons but also that that was happening not just ‘oop north’ but also ‘darn sarf’ and, what’s more, everyone knew it was happening and no-one objected!

Shocked to the very core of her long-running Sunday teatime television serial, Pauffley J fulminated, ‘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.’ She continued, ‘Whatever else, it should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.’

Indeed, so outraged was Pauffley J by what she had uncovered that she asked Sir James ‘Sherlock’ Munby P to proof read her latest best seller (Justices’ Reasons They Wrote) prior to publication. Sir James both read and approved chapters 57 to 71 of Pauffley J’s magnus opus.

Not to be outdone in the ‘Disgusted of Reading District Registry’ department, Sir James Munby P, the Justices’ Clerks’ Society, and the Magistrates’ Association issued the snappily titled, ‘Provision of Justices’ Reasons in Uncontested Cases,’ in the week commencing 17th March 2014 (copies are available online).

The upshot of the guidance (which is mercifully concise) is that parties should never be involved in the drafting of Justices’ reasons in either public or private law matters and irrespective of whether the proceedings have been compromised by the parties or have been fully contested. Happily, the depth of analysis of the facts and law required in a particular case will depend on whether it’s contested or not, contested hearing requiring more by way of analysis than hearings involving the court simply endorsing agreements arrived at by the parties.

Although the guidance hints that the justices could crib parts of any skeleton arguments submitted electronically or otherwise by the parties, Pauffley J was at pains to point out that the Court of Appeal deprecated that practice in the strongest possible terms in Crinion v. IG Markets Ltd [2013] EWCA Civ 587. In that case, Sir Stephen Sedley opined:
(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.

That being so, justices need to be told firmly that they oughtn’t to copy other people’s homework.

And what of NL? Appeal allowed: mother and baby to be placed together in a residential unit for assessment.

Graeme Harrison

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