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Children: Public Law Update (October 2013)

John Tughan, barrister, of 4 Paper Buildings reviews important recent cases of which all public law practitioners ought to be aware.

John Tughan, barrister, 4 Paper Buildings














John Tughan, barrister, 4 Paper Buildings

In this update I will consider recent cases that touch upon the following issues:

Evidence of non-English speaking witnesses
In a case that did not involve care proceedings, Peter Jackson J considered the gathering of evidence from non-English speaking witnesses.  The principles identified in NN v ZZ & Ors [2013] EWHC 2261 (Fam) are clearly capable of being applied to care proceedings and contain important duties on members of the legal professions.  Practitioners should bear them in mind. 

The following principles were identified:

(1)The statement must be prepared in the witness's own language before being translated into English.

(2)  There must be clarity about the process by which a statement has been created on the face of the statement.

(3)  Any instructed Solicitor should be fully involved in the process and should not subcontract it to the client.

(4)  If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.

(5)  The witness should be spoken to wherever possible, using an interpreter. If the solicitor is fluent in the foreign language, then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.

(6)  A litigant in person should, where possible, use a certified interpreter when preparing a witness statement.

(7)  If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator's jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction [Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2].

(8)  Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.

(9)  If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness's own language and the English translation should be provided to them well in advance of the hearing.

(10)  If a statement has been obtained and prepared abroad in compliance with the relevant country's laws, a certified translation of that statement must be filed together with the original document.

Using technology to hear evidence from remote parts of the world
In a further recent judgment concerning the gathering and use of evidence, Peter Jackson J allowed the use of Skype to take the evidence of a witness in Colombia.  She lived in a remote area, the nearest University could not help with the usual video-link and an alternative was required.  In  Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam)  the judge refused the original application to use Skype and said that he had done so in other cases as

"....the technology can be very effective for informal use, but does not lend itself to the court environment. There are problems in everyone seeing and hearing the picture and in the evidence being recorded.  There are also issues about security. I would not be willing to use this method if there was any alternative."

However,

" The difficulties were resolved by the solicitors for the applicant (Goodman Ray) identifying a process (in that case operated by a company called eyenetwork.com), who provide a bridge between the witness using Skype and the ISDN system in place at court. This technology mediates between the systems and provides some protection against hacking. The Skype-user is provided with a download allowing them to connect to the court's system. In addition to the program, the witness requires a PC, an internet connection, a webcam, a microphone and a mobile or landline number with which to contact the company for instructions via a multilingual team....The quality of the link was adequate. The witness gave evidence for an hour at a cost of about £150. The cost of a full ISDN link would have been in the region of £1,200. There is clearly the possibility of using this system in hearings involving witnesses in remote locations and in reducing the high international costs associated with ISDN."

Experts and focussing on the relevant issues
In IA (A Child) [2013] EWHC 2499 (Fam) Pauffley J was dealing with issues of injury to a child, poor care-planning and also to experts' reports.  Of the need for experts to answer specific questions asked of them and thereby to limit themselves to the relevant and identified issues, the court said this:

" In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half.  Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.

Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.

Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance's over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a 'paediatric overview.' I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind."

Media presence in proceedings
In Re Al-Hilli (Children) [2013] EWHC 2190 (Fam) Baker J was considering the care arrangements for the two girls whose parents were killed whilst travelling in France. However, the issue that arose before the court related to the media reporting of care proceedings.  Having reviewed the guidance and authorities and noted the limited number of decisions on the issue, the court made the following observations:

(i)  the media have a right to attend private family proceedings (not falling within the exceptions in FPR rule 27.11(1)) and can only be excluded if the court finds that one or more of the grounds in rule 27.11(3) are established.  Those grounds are:

(a) this is necessary-

(i) in the interests of any child concerned in , or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

(ii) the burden of satisfying the Court that it is necessary to eclude the media falls on the party seeking that exclusion.  It must be "necessary" to exclude the media.

(iii) the rights of the media do not extend to a right to report (save where so permitted by the court) but that does not detract from the importance of the reporter's rights.

(iv) The Court's powers are flexible on the issue of attendance of the media.  The question of media attendance can be addressed at any point in the hearing. Its representatives may be permitted to attend some parts of the hearing but excluded from others, if one or other of the grounds in rule 27.11(3) is satisfied. The circumstances in which the media are excluded from the whole of a substantive hearing are therefore likely to be rare.

(v) Judge's and professionals "must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise."

(vi) the resolution of the issue as to whether or not, consistently with the rule and Practice Direction, the media should be excluded involves a parallel analysis and balancing of the various human rights arising, as explained in the context of reporting restriction orders by Lord Steyn in the House of Lords in Re S (A Child)(Identification) Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593 and requires an "intense focus on the comparative importance of the specific rights being claimed".  There must, as Peter Jackson J observed in Hillingdon LBC v Neary, supra, at paragraph 15(3), be a proper, factual basis for the concerns said to amount to an infringement of the rights claimed.

The impact of Re B on the appeal process in care proceedings
In G (A Child) [2013] EWCA Civ 965 the Court of Appeal considered the impact of the Supreme Court decision in Re B (A Child) [2013] UKSC 33 in relation to the appeal process as it related to the care proceedings before the Court.  McFarlane LJ said this:

"The second aspect of the Supreme Court decision in Re B which is relevant to the present appeal arises from their lordships' clarification of the necessary role of an appellate court where there is a challenge to the proportionality of a public law order authorising local authority intervention under CA 1989. Whilst the type of intervention considered in Re B was adoption, in my view the approach to be deployed must similarly apply to lesser forms of intervention.  On this aspect the majority of the Justices (Lord Neuberger, Lord Clarke and Lord Wilson) concluded that the duty on a court, as a 'public authority', not to act in a manner which is incompatible with the Convention under Human Rights Act 1998, s 6(1) does not mandate the appellate court to undertake a fresh determination of a Convention-related issue (paragraphs 37, 83 to 90 and 136). The majority did not therefore hold that there was a need for a radical departure from the conventional domestic concept of a 'review' of a case on appeal, as opposed to a full re-appraisal on the issue of proportionality. The traditional appellate approach to issues of pure judicial discretion has been that of recognising the generous ambit of reasonable disagreement and only intervening where the judge's decision is seen to be outside that ambit and is 'plainly wrong' (per G v G [1985] 1 WLR 647). All five SCJ's however identified that that ('plainly wrong') approach does not apply to an appellate review of the evaluative determination of whether the s 31 threshold is crossed; such a review is to be conducted by reference simply to whether the determination is 'wrong' (paragraphs 44, 91, 138 and 145)."

Although Re B related to a care plan of adoption, the approach set out in that case was to be applied to all forms of intervention in family life.

Re B-S and care plans for adoption
And finally, the important and far-reaching decision in Re B-S [2013] EWCA Civ 813 has been covered by Alex Verdan QC and Nicola Harries in a separate article on Family Law Week.  The judgment in that case is required reading for anyone involved in cases involving a care plan for adoption.  Anyone reading the judgment will note the frustration expressed in the Court of Appeal with current practice and the professions involved would be wise to take note!  The essential issue for the Court of Appeal is the analysis of the pros and cons of an adoptive placement.  Much emphasis is placed on the absolute necessity of such an analysis within the filed evidence.  Similarly, the balance must be conducted by the court hearing any such application.

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