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Pauffley J deprecates Justices adopting LAs’ ‘Facts and Reasons’ in care proceedings

President recommends that the judgment be read by all care practitioners

In Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) Mrs Justice Pauffley has deprecated the widespread practice in care proceedings in the family proceedings court by which parties, usually the local authority, draft the 'Facts and Reasons' which are then adopted by the Justices.

In the case before Pauffley J counsel originally instructed for the local authority had drafted the entire 'Facts and Reasons' document in respect of an application in the family proceedings court for an interim care order. The draft had been sent to the court, by email, prior to the hearing. It was made available to the parties' legal representatives, in hard copy, outside court on the morning of the hearing. The mother's legal team had no input into the draft. Counsel then instructed for the local authority amended the draft to reflect the parties' positions and included reference to an expert's report obtained on the previous day. The amended document was sent electronically to the legal adviser during the hearing and became the perfected 'Facts and Reasons'.

In her judgment – which in his latest View (No 10) the President has recommended should be read by all care practitioners – Pauffley J said:

"Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country."

She added:

"Seemingly, there were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.

"Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority's analysis of what their Findings and Reasons might comprise."

The judge referred to Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587 in which the Court of Appeal made clear that the wholesale incorporation of such a draft is impermissible.

She concluded in respect of this aspect of the case:

"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."

Pauffley J also expressed concern about a 'triage' assessment of the mother by a chartered clinical psychologist which was commissioned and completed during the course of the day before the first hearing. She said:

"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.

"It surprises and alarms me that Dr van Rooyen [the psychologist] 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]."

The judge noted that the reason why the local authority acted as it did concerning the report might be associated with the family justice reforms and the impetus to complete public law cases within 26 weeks. She commented:

"Justice must never be sacrificed upon the altar of speed."

The mother's appeal was allowed.

In the High Court proceedings the mother was represented by Katherine Dunseath of 3PB; the local authority was represented by Isabelle Watson of 4 Brick Court; and the Children's Guardian was represented by Seona Myerscough of Gardner Leader

The judgment is here.

14/2/14