At the end of Sir James Munby’s 14th ‘View from the President’s Chambers’, published on 11 August 2016, there is an indication that, purely on a costs saving basis, the Ministry of Justice is ‘investigating whether there is scope for a reformed level of representation for children in public law cases’. This investigation is expressed to be with the President’s support. As to what the MoJ (or the cold hand of the Treasury) might wish to see, there is no clue. The President however, seems to be considering whether the attendance of the guardian and perhaps the child’s solicitor, might be dispensed with at some hearings. We have, of course, contested this ground before.
Sir James has shown himself to be an exceptionally humane and intelligent head of the Family Court, as well as politically astute. Children’s justice owes him much, including this disclosure. The managing of a ‘fighting retreat’ requires considerable skill if it is not to turn into a rout. It has been this President’s lot to carry out such a task.
I am not entrusted with an office of state. I and others like me, simply have the job of giving a voice to the voiceless and being awkward, uncompromising and speaking our minds, regardless of the consequences.
In the first place, it needs to be made clear that this is not an issue of demarcation and overmanning; something reminiscent of late 1970s strikes. We are not arguing about who closes the train doors. The Ministry of Justice and their political masters will be quick to dismiss opposition from children’s lawyers and guardians as the voices of ‘vested interests’. In truth, the Family Court is one of the few remaining places where ‘professionals’ in the sense the word was defined to me, over thirty years ago, can still be found. Those who follow a profession, I was told, are paid in order that they might work, rather than vice versa. I am not sure that politicians have ever understood this. The backdrop to any response must however, be that no one is defending their job. Whether solicitors or guardians, we all have more work to do than you might shake a stick at. The issue is getting the right outcome. People are going to have to live the rest of their lives in the shadow of the decisions taken in these cases; can anyone tell me how much is too much to spend, when the outcome may affect unborn generations?
Is it really thought that solicitors and guardians are attending hearings for an easy morning away from the desk, or the sheer social interaction of the event? In North Yorkshire at least, most guardians are double or treble booked in venues up to 60 miles apart and the solicitors are not being paid anything for up to a two-hour round trip to court and back. If all that anyone wanted was an easy life, less court hearings to attend would surely be welcome.
Secondly, there is no suggestion, from the President at least, of any wholesale abandonment of the tandem model. He says that he would ‘be strongly opposed to any watering down of this vital component of care proceedings’ and we should take him at his word on that. The issue, for now, is a discrete one, of whether there is scope for dispensing with the attendance of the guardian and perhaps even the child’s solicitor, at some points in the case.
The current MoJ investigation seems to be focussed on the views of the judiciary. This is all well and good, save that there is much that the judges do not see or hear. The judge sees the parties come into court, a draft order is handed up for approval and the parties leave without the child’s solicitor, or the guardian having said a word. Viewed from the bench, one might be forgiven for thinking that the cost of their attending that day had been unnecessary. The judge of course will know little or nothing of the discussions which have taken place in the conference rooms and corridors beforehand. They can know nothing, for example, of the proposed change to the care plan, discussed for the first time between social workers and their counsel at court, but dropped after discussion with the guardian and the child’s solicitor.
Children’s cases are dynamic, evolving things. Whilst there are some kinds of litigation which are like putting on an ‘old standard’ by a repertory theatre company, rehearsed and familiar, child care is more akin to improvisation, reacting to unexpected developments and the reactions of others to those changes. Gone are the days of judges as passive approvers and adjudicators. Today’s care judges are trained to be interventionist and to take an active role in the managing and directing of the case. If I attend a court hearing on behalf of the children, but without the guardian present, there are grave limits to my ability to react to unexpected developments. I am not a social worker. I cannot ‘make up’ some instructions for myself which I might guess the guardian would have given me had he or she been there. On a 26-week timetable, there will be not time for delay. Decisions will be made and the case will move on. Everyone but the child will have had some input. My clients will have had second class representation and that is not something I can easily accept.
Now, it is all well and good me complaining, but is there any real evidence that not having as much input from the guardian changes outcomes? As luck would have it, the decision of the Court of Appeal in Re W (A Child)  EWCA Civ 793, has recently been published. This case related to cross applications for adoption by the potential adopters with whom the child had been placed by the local authority and an eleventh hour special guardianship application by, recently discovered, paternal grandparents. In the Court of Appeal, Lord Justice McFarlane was highly critical of the report prepared by the Children’s Guardian which he said was ‘inadequate’. The Guardian had filed her report on 30 November 2015, without seeing the child, and then seems to have been away from work ill, until shortly before the final hearing in April 2016. In her absence, the case had continued to develop and the two-year-old child was in no position to give instructions to her representatives in the Guardian’s absence.
At paragraph 84 of his judgement, McFarlane LJ gives a plain English explanation of what was missing from the case and what, of course, the guardian provides for the court:
‘84. This case was all about A. She is a person. Her personality, her attributes, her achievements should have been centre stage in these proceedings. Yet she does not shine out from any reading of the court papers or from the judge's judgment, indeed, the opposite is the case.’
The task of the guardian, at every hearing, is to act as a proxy for the child and to ensure that the child does ‘shine out’ before those who are making decisions about that child’s future life.
Children’s guardians and their legal representatives are not children, and it is patronising to treat them as such. There will be some hearings when, with proper advance discussions and preparation, the guardian can be released to do more valuable work elsewhere. The only people with the information to make this decision are the guardian and the child’s solicitor and they should be trusted to act in a responsible fashion. They are, after all, responsible for the consequences.
It is already rare for guardians to attend fact finding hearings in full. This is less than ideal, but perhaps an inevitable compromise. It does disadvantage the guardian, in working with the parties afterwards, that they were not able to hear the nuances of the evidence, particularly some of the expert evidence. Could it be contemplated that the child would have neither solicitor/counsel nor guardian at such hearings? This, I would suggest, would be a dangerous step to take.
The simplistic response would be to say that I have to be there to call the expert witnesses, but the reality is that the judge could make them the court’s witness and my ‘walk-on’ part asking the radiologist to confirm the contents of her report could quite easily be done by someone else. There are however, much more important tasks, which can only be accomplished by the child being properly represented by an advocate with proper instructions.
- a) As a matter of article 6 fairness, the child is entitled to be represented at a hearing where decisions are being made about things which did or did not happen to them and which will determine what, for the rest of their lives, happens to them.
- b) Whilst it is often the case that no submissions are necessary on behalf of the child at the conclusion of a fact finding, I cannot be alone in having been required to make detailed submissions, where the local authority suddenly decided not to pursue particular findings which the guardian (fortunately present) believed to be made out and needed rulings, for his work at the welfare stage to be carried out.
- c) I have always approached my task as, primarily, to ensure that all the relevant facts are placed before the court, so that the best decision can be made for the child. My client’s best interests will be served by the truth coming out, whether that is contained in the local authority evidence, the parents’, or a combination of the two, is almost a matter of indifference. It is an old advocate’s adage that you never ask a question to which you do not already know the answer. An advocate, seeking to prove a particular set of facts will be very reluctant to open up issues which arise spontaneously, but where the details are unknown. On behalf of the child you have a freedom to pick up these loose threads and to follow them where they lead. Often it is a cul-de-sac, but occasionally, something very significant emerges or, very occasionally, a witnesses’ testimony, quite literally, falls apart.
Of course, you can say that these sorts of things do not happen often, that is true. The political, rather than legal question is this: what is an acceptable casualty rate? How many wrong decisions are a price worth paying for the sake of the budget?
As I read this piece back to myself, I can almost hear the exasperated response of ‘well what is the answer then?’ I do not put forward a solution because no one in power has seen fit to tell me what the question is. That is part of being independent and awkward. If the Secretary of State would speak frankly to the professions, as to what she is seeking to achieve, she may find that there are a lot of inventive and creative minds at her disposal. Thus far, neither she nor her predecessors have sought to take advantage of a cooperative approach, which treats with respect those who may have some real understanding of the issues.
I have never understood why, politicians say that in the UK, we spend more on legal aid than any other country in Europe and seem to think that this self-evident proof that something is wrong. When the money is spent on the NHS or on defence it is spoken of as a matter of national pride. When did equal justice for all, become a matter of shame?