His Honour Judge Clifford Bellamy
Designated Family Judge for Leicester
NEWSLETTER 10
We are in a time of waiting: waiting for formal confirmation of the date when the single Family Court will come into being; waiting for the Children and Families Bill to complete its legislative journey; waiting for publication of the research undertaken by Ipsos-Mori into the experiences of implementing the revised PLO at local level; waiting to see the final shape of the Child Arrangements Programme. We spend a lot of time waiting. However, we do not spend a lot of time being idle.
We are all working very hard trying to make a success of the family justice reforms. Sometimes we feel that too much is being expected of us. Quite independently of each other, two senior local solicitors have recently made the point to me that practitioners are feeling very stretched and under pressure. One told me, perfectly reasonably, that despite their commitment to making the reforms work, practitioners also want a life.
For those who are feeling overwhelmed by the pace and challenges of the modernisation process, it will no doubt be little comfort to hear your DFJ say that he understands. But I do. Though I have been a full-time judge for over 18 years, I have not forgotten my days as a solicitor in a relatively small market town firm, heading up its family law department (most of my work was publicly funded) and meeting difficult challenges such as the implementation of the Children Act, the increasing bureaucratisation of legal aid and the dawn of the tick-box age. It is tough. I remember it well.
There is nothing I can do to reduce the burden on you. I am no more able than King Canute to hold back the incoming tide of reform and the deluge of paper. What I can do is what I have been endeavouring to do since I became DFJ - build a team spirit in which we are all alive to the importance of working together, supporting one another and offering encouragement to one another. At the risk of sounding Cameronesque – we really are all in it together.
Rutland
Historically, Leicester has been the Care Centre for three local authorities – Leicester City Council, Leicestershire County Council and Rutland County Council. Rutland has also issued cases in Peterborough. The volume of cases Rutland has conducted in the Leicester Care Centre has been tiny. It makes sense for all of their cases to be in the same court. I have therefore agreed with Rutland, and also with the Designated Family Judge for Peterborough, that in future Peterborough will be Care Centre for all new Rutland cases. The President’s office and the FDLJ have agreed to this change. As we say goodbye to Rutland we also send our very best wishes for the future.
Split hearings
Split hearings are a significant cause of delay in public law cases. When the court orders a split hearing it inevitably becomes difficult to complete that case within what is soon to be the statutory time limit of 26 weeks. On this issue, practitioners need to be aware of the recent guidance given by the Court of Appeal in Re S (A Child) [2014] EWCA Civ 25. Although the whole judgment needs to be read, the following passage from the judgment of Ryder LJ makes the point clearly:
‘29. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.’
Transparency
The final version of the President’s Practice Guidance Transparency in the Family Courts – Publication of Judgments was published on 16th January. It comes into effect on 3rd February. It is important that all practitioners are familiar with the guidance. Permission to publish becomes the default position in certain categories of case (paragraph 17). Any party wishing to contend that there are compelling reasons why the judge should not give permission must be prepared to make representations at the appropriate time (i.e. the time when a written judgment is formally handed down in court or the time when the court orders a transcript of a judgment). Solicitors should in particular take note of the obligations created by paragraph 21.
Bundles
This is a topic that has been addressed in previous editions of my newsletter. The current guidance on hearing bundles is to be found in Family Procedure Rules 2010 Practice Direction 27A. As part of the modernisation reforms some changes to that PD are inevitable. The President is consulting on a draft amended version of PD27A. The consultation period ends on 28th February. It is likely that I shall come to the conclusion that in light of the amendments to PD27A our own local practice direction, Hearing bundles for case management and directions hearings in children cases proceeding in the Leicester Courts, has become redundant. If you have not already done so I encourage you to read and respond to the consultation.
Police disclosure
In my December newsletter I attached a copy of a local Information Sharing Agreement (ISA) entered into between Leicestershire Police, Leicestershire County Council, Leicester City Council and Rutland County Council. In my last newsletter I noted that although the ISA is itself a very recent document, questions have been raised about its status and its compatibility with the national Protocol and Good Practice Model which came into force on 1st January. Although section 19 of the national protocol specifically provides that each area should have a local protocol to give effect to the national protocol, it is clear that our local ISA goes far beyond that which is required. With regret (not least because of the amount of time that was invested in drafting it) the ISA attached to my December newsletter should be discarded.
Adoption
Adoption reports: The Family Procedure Rules 2010 Practice Direction 14C sets out detailed requirements for the contents of reports prepared for adoption and placement applications. These reports are invariably referred to as the Annex A report (for use in adoption proceedings) and the Annex B report (for use in placement proceedings). I recently became aware of guidance given by Her Honour Judge Dowding (Wolverhampton County Court). The intention of the guidance is to improve the quality of Annex A and Annex B reports. I have indicated to Leicester City Council and Leicestershire County Council my intention to introduce that guidance locally. I attach a copy.
Scorecards: In 2012 the government published Adoption Scorecards setting out data showing the speed at which local authorities place children in need of adoption with an adoptive family. Last month updated scorecards were published. The latest scorecards cover a three year period to March 2013. I have attached the 2014 scorecards for our two local authorities.
Mediation
In previous newsletters I have highlighted the problem of the falling number of referrals to mediation since LASPO came into effect. There are no signes of this problem improving. Figures released in response to a Freedom of Information request show a 45% year-on-year reduction in mediation starts. You may be interested in the recent article in Family Law Week
Contact Centres
Another consequence of LASPO and of the increase in the number of unrepresented parents involved in private law proceedings is the problem of referrals to contact centres. Referral forms have to be completed by the parents themselves. Some parents refuse to complete a referral form. When a place becomes available sometimes the contact centre has to tell both parents (i.e. act as go-between) because one parent refuses to tell the other because they do not communicate with each other. All of this is placing a burden on contact centres which they are not equipped to deal with – and which they should not be expected to deal with. The recent report of the Private Law Working Group highlights the importance of contact centres (see paragraphs 104 to 106) but does not address the practical problems which now arise.
I am told this is an issue which NACC is considering. However, in the absence of a national approach to the problem we need to come up with a local solution. I am open to all ideas and suggestions on this issue. If you have any suggestions to make, or if you simply want to give details of any problems you have encountered relating to referrals to contact centres in cases where both parents are unrepresented, please will you give details by e-mail to Justine Blackwell or Emma Holyoak by 20 February. If no national guidance is forthcoming it is my intention to have local guidance in place by the time the Child Arrangement Programme comes into effect.
Training
May I remind you of the forthcoming training event on Thursday 27th February 2014 at the Council Chamber, Town Hall, Leicester from 5.00pm until 7.00pm? The topic is Private Law: The New Child Arrangements Programme. Will Tyler and Laura Vickers will lead a seminar directed at all professionals who practise in Private Law children disputes (in and out of Court) and will focus on the detail and implications of the new draft Child Arrangements Programme (CAP).This is a FREE event. CPD points are available for solicitors and the Bar.
Invites have been sent out via Eventbrite so you should already have received an invitation. Jan Flawith and Katie Randall at RP Robinson have organised the invites. At the time of writing there are only 8 places left. If anyone else is interested they should book without delay.
I also take this opportunity to thank Will Tyler and Hannah Markham for their excellent recent training event relating to the implications of Re B-S (Children). This event was well attended – and well worth attending!
Three miscellaneous points
(i)Judges are routinely asked by practitioners to make it clear on the face of our orders that at the next hearing parties are expected to be at court by 9.30a.m. That judges routinely comply with such requests is not entirely altruistic. It is of assistance to the court to have practitioners arrive at court early so that discussions and negotiations can take place before the court list begins at 10.30. I am told that despite our orders some practitioners can be relied upon to arrive close to the wire. It woudl be very helpful to see some improvement during 2014.
(ii)In a previous newsletter I attached a local protocol relating to the filing of documents at court. I am told by staff that practitioners continue to attempt to file documents that do not need to be filed. I attach a further copy of the protocol. Please read it – and please comply with it.
(iii)I continue to receive e-mails from, in particular, members of the Bar using accounts which I suspect are not secure (e.g. hotmail). May I again remind you of the availability of CJS Secure Email (CJSM). This is a service provided by the Ministry of Justice. It is free for civil and family law solicitors. It allows users to send and receive information securely. It is not available to the general public. Emails transmitted via the gsi network and other secure Government networks can send to and receive from CJSM accounts. More information about signing up to this service is available at
Website
Our local Family Justice Board has accepted in principle a proposal submitted by a sub-committee chaired by Laura Vickers of 2 New Street Chambers for a local FJB website. It is hoped that the website will prove to be a valuable resource for all local practitioners. Market research suggests that there is good support for this venture. There is one stubling block. The local FJB has no funds to meet the set up or running costs of a website. Three quotes have been obtained. The lowest is for just under £2,900. That will cover the cost of setting up the website and running it for the first two years. The sub-committee is looking for donations. If you or your organisation feel able to support the project, or if you would like more information about it, please contact Laura. Any donations - however small - would be most gratefully received.
Nobody Comes
Finally, for those of you who are interested in reading human interest stories, may I commend to you a recently published book, Nobody Comes, written by my former colleague His Honour Judge Anthony Cleary. The book is only available as an e-book. I am not on commission!
Case updater
I am grateful to Claire Howell for the following case law update:
PUBLIC LAW
Surrey County Council v Al-Hilli & Others (4) [2012] EWHC 4394 (Fam)
Application by the police (opposed by the local authority and the guardian) to be joined as a party to care proceedings
The subject children’s parents were tragically murdered whilst on holiday in the French Alps in 2012. The children were placed with foster parents with a very high degree of police protection.The police had attended most of the interim hearings to date and it was common ground that their help would continue to be required at all stages in the proceedings. That help included the provision of information concerning the ongoing police investigations, disclosure of documents within their possession or control that were relevant to future decisions about the children's welfare and information concerning the specific risks to the children. The application was opposed by both the local authority and the guardian.
Baker J
Granted the application and made the police party to the proceedings noting that:
(1)a substantial proportion of the documents relevant to the proceedings would be either generated by, or distributed through, the Surrey Police;
(2)it would be necessary to consult the Surrey Police at all stages along the way about decisions concerning the welfare of the children, including their placement, their therapy and other treatment, their education and contact to ensure the safety of the children was protected in the decisions made by the Court; and
(3)it was likely in this case that the police may have a positive case to advance on the future placement of the children as part of their responsibility as the law enforcement agency entrusted with the duty of protecting persons within their area, particularly where there may be a threat to life.
Re S (A Child) [2014] EWCA Civ 25
Consideration by the Court of Appeal of the appropriate use of split hearings within public law children proceedings.
This case has already been referred to in relation to split hearings earlier in this newsletter but the judgment is also worth reading in relation to the meaning of ‘non-accidental injury’.
A classic NAI scenario; child presented to hospital with a serious head injury which the local authority alleged was non-accidental, deliberately inflicted and had occurred whilst the child was in the care of the parents. The local authority further alleged that one of the parents had caused the injury and the other had failed to protect the child from that harm. The judge concluded that the child had suffered significant harm whilst in the care of the parents and that the harm was caused by an injury. He was not satisfied that either parent had deliberately inflicted the injury.
On appeal, the Court of Appeal found that the judge cannot be said to have been plainly wrong in the findings he made or in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence.
Ryder LJ
“[19]The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident.It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong.That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
[20]…If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.”
A Local Auth v DG & Others [2014] EWHC 63 (Fam)
Care proceedings where the father of a child, aged 3, has been charged with the murder of the mother. Criticism made by the judge of the parties’ failure to comply with court directions and guidance given as to the interplay between care proceedings and linked and concurrent criminal proceedings.
The father was charged with murder and had been remanded in custody awaiting trial on 22nd April 2014. The local authority had issued care proceedings shortly after the murder of the mother and HL had, since that time, been the subject of interim care orders and living with foster carers. The local authority, in order to meet the threshold criteria, sought findings that the father had murdered the mother and had been violent to her on numerous occasions over the previous three years. This was in accordance with the charges the Crown had laid.