Transparency Project: Family Court Reporting Watch – Weekly Round-Up

The purpose of this update is to correct, clarify and comment on media reports of family court cases, to explain and comment on published Judgments of family cases and to highlight other transparency news.

Media Reports of Family Courts Case and Family Justice Issues

•  The Daily Telegraph claimed the Court of Protection faces ‘rocketing financial abuse by attorneys and deputies’. The Transparency Project examined that claim here: Is the Court of Protection really facing rocketing financial abuse by attorneys and deputies?
• The Guardian published an alarmist report about parents of transgender children living in fear in the aftermath of J (A Minor). Family Court Reporting Watch examined that claim here: Could do better: A self fulfilling prophecy about parental fear.  (We also forwarded our piece to the Guardian and the journalist. We have heard nothing back so far).

Newly Published Cases for Explanation or Comment

• Family Court Judgment published to promote children’s interests, in spite of likely identification of those children: Re X (3) [2016] EWFC B91 (12 October 2016) is a recently published family court judgment on disagreements about child arrangements between separated parents. The children’s family life and experience had been wholly within the Satmar Ultra –Orthodox Jewish community until the father left the community in 2013.  The mother sought publication of the judgments while the father worried about the children being identified. In the particular circumstances, Her Honour Judge Rowe QC decided it would assist the children’s welfare for the anonymised judgment from this (and 2 previous hearings) to be published, despite accepting it was likely that those already knowing the family within the community would be able to identify the children. Publication would help the mother and the children by providing a balanced explanation of the family court and the expectations on the mother to the wider community.

• A social worker and police officer avoided serious judicial findings against them and being named in a published judgment, when the Court of Appeal set aside the findings for having been made within a process that was unfair towards them: W (A Child), Re [2016] EWCA Civ 1140  The decision was widely reported in relation to the legal rights of witnesses to appeal against findings made against them and the way professional failures were overturned and professionals went unnamed due to a failure in procedural fairness to them.  See Suespicious Minds here. And Community Care here. Other reports such as that of the Daily Mail focused on the unusual situation in which professionals found initially to have acted seriously outside of their professional duties, avoided adverse findings and identification in a published judgment by successful appeal on a procedural point (unfairness). In order to maintain their confidentiality neither the original judge or court were named let alone the council or professional witnesses including the social worker and police officer. The serious original findings that the social worker and police officer had:
  • engaged in a “joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines” (with the social worker the “the principal instigator”
  • lied to the court;
  • and subjected the original complainant “to a high level of emotional abuse over a sustained period as a result of their professional interaction with her”

were thrown out because they had no notice of the serious allegations or opportunity to reply during the long trial itself. The first they knew of the serious findings was a draft bullet point judgment in the lead up to intended publication. The Court of Appeal decided this was so unfair that it could not be rectified by the later opportunity they were given to make representations since these came after the Judge had essentially made up his mind. The procedural unfairness was so great that it should be as if the findings had never been made, with them struck out of the judgment on record. The Court of Appeal said

“The consequences for those who are criticised in these findings are both real and significant. … because the ramifications of this decision may need to be considered in other cases, I would offer the following short observations… Where during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following: a) Ensuring that the case in support of such adverse findings is adequately ‘put’ to the relevant witness(es), if necessary by recalling them to give further evidence; b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material; c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness.”

The Court of Appeal were at pains to distinguish this “vanishingly rare” case, where the Article 8 rights of the professionals witnesses were sufficiently engaged so as to entitle them unusually, to “some form of additional process, such a legal advice or representation during the hearing”, from other more routine cases “where it is unfortunately, sometimes the case that a judge in civil or family proceedings may be driven to criticise the professional practice or expertise of an expert witness in the case”.   Here the findings went far beyond the case issues, were exceptionally serious and hadn’t been raised whatsoever during a long trial process, surfacing first at the point of a draft bullet point judgment..

Nevertheless, the Transparency Project has concerns that the impact more generally, of naming councils and professional witnesses like social workers and guardians (on the public interest, morale, motivation etc), in accordance with the President’s Transparency Guidance on publication of judgments, is an under-researched area that requires more thought and debate. There seems to be something of a geographical postcode lottery for professionals in relation to likelihood of being named and inconsistent judicial practice on holding the right level of practitioner accountable for systemic failures.

• Family Court Reporting Watch highlighted a published case where the case management of alleged harm to a child in care proceedings was not safe and was put right,  Our full blog is here.

• Right to name abusers? Armes v Nottinghamshire County Council [2016] EWHC 2864. See reports at UK Human Rights Watch and Inforrm here on this case in which the rights of a claimant to name the people who abused her prevailed over the rights of the perpetrators and others to private and family life.

• Family Court Reporting Watch covered a case in which the distinctions between care and supervision orders was considered : Care order or supervision order?

And in other Transparency News

• The Access to Justice Commission, headed by Lord Bach, published their interim report : ‘The Crisis In the Justice System in England and Wales’, Interim report of the Bach Commission on Access to Justice, published November 2016 by the Fabian Society has been comprehensively reported in mainstream and specialist media (though links to the report itself or even it’s full title are astonishingly scarce). Its proposals include:
  • Enshrining minimum standards for access to justice in law;
  • A focus on early public legal education such as in schools including to prevent litigation;
  • Scrapping the legal aid gateway;
  • A central online portal for claims;
  • Reform of legal aid eligibility criteria;
  • Charging government bodies in some instances for overturned decisions to fund court fees;
  • Integration of legal advice across public services;
  • Technological reforms
  • Increased funding for legal advice centres

Detailed media reports include: The Independent: The Guardian: The Solicitors Journal: Sir Henry Brooke and Justice Gap:

• The Local Government Ombudsman (LGO) and Ofsted have agreed an information sharing protocol Reported the Local Government Lawyer  here 

• The Government consultation on implementation of the Leveson enquiry: Media reports continue on the consultation launched 1^st November 2016 and due to close 10th January 2017. From the Press and Star regional paper calling on its readers to stop the ‘dangerous lunacy’ of s.40 of the Crime and Courts Act 2013 and the Press Gazette reporting on that.  To the Hacked Off report explaining why the text of the consultation itself is misleading and Inforrm reporting on that here.

• More on Mckenzie Friends:  The Gazette reported the impact of Mckenzie Friend John Bright on the litigants who used him. Bright ran Parents Voice and was recently imprisoned for perverting the course of justice in family proceedings: ‘My Mckenzie Friend nightmare‘. While Holman J commended the Mckenzie Friend he had expected might be difficult but who turned out to be the opposite, in a published judgment on a private surrogacy agreement that ‘unravelled’, in which he ordered direct contact to the biological mother.

“There was a strong objection on behalf of the father and mother to Mr Culshaw acting as McKenzie Friend since he, too, is undoubtedly a campaigner, who participated in several of the protests I have mentioned. But many people who are willing and motivated to act as McKenzie Friends are indeed campaigners, and if they were all prevented from doing so on that ground alone, many rather helpless litigants, like the sister in this case, might be left with no effective help or support at all. I wish to record that within the four walls of this courtroom, which is, of course, the extent of my observation of him, Mr Culshaw has acted impeccably and within the proper boundaries of a McKenzie Friend. He has shown respect and courtesy to the court. He has been a model of restraint. He has not sought to become an advocate and nor would I have permitted him to do so, but he has provided visible and obvious help and support to the sister, and he has helped her to formulate sensible and well judged questions.”

 Feature image courtesy of Flickr with thanks to Lauri Heikkinen

This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks.