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President queries separate representation of parties who ‘stand together’ in care proceedings

‘The profession must take heed’, Sir James Munby warns

Sir James Munby in his first published judgment as President of the Family Division has questioned the separate representation of parties who share a common interest.

In Re TG (A Child) [2013] EWCA Civ 5 the father appealed against a case management decision refusing him permission to instruct a biomechanical engineering expert in care proceedings pursuant to Part 25 of the Family Procedure Rules 2010.  Permission to appeal was granted but the appeal was dismissed.  In dismissing the appeal, the President of the Family Division rehearsed the principles involved in appealing case management decisions. For the judgment and case summary by Kate Tompkins of 36 Bedford Row, please click here.

Sir James Munby concluded his judgment by considering the nature of care proceedings and the parties' representation. He said:

"It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish 'threshold' they are also necessarily adversarial in the technical sense."

Noting that 'the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented', he continued:

"May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

"Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered....

"Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy's order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father's appeal and the children's guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense.

".....This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies."

Sir James concluded:

"[I]t would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position."