Judicial Cooperation with Serious Case Reviews

….There won’t be any (cooperation). Not least because Serious Case Reviews have been abolished with the enactment of the Children and Social Work Act 2017 on 27 April, which will (from a date yet to be fixed) abolish Local Safeguarding Childrens’ Boards and thus, Serious Case Reviews. The President’s Guidance : Judicial Cooperation with Serious Case Reviews is dated 2 May 2017. It IS current, but it won’t be for long (assuming always that the Act is actually brought into force – though there is no particular reason to think it won’t be once the General Election is over).

OK, it’s a cheap point. LSCBs (Local Safeguarding Children Boards) and SCRs will be replaced with the Child Safeguarding Practice Review Panel and with Local child safeguarding practice reviews and Child Death Review Panels. I’ve yet to get my head around the detail of what the difference is (apart from the name), but the gist seems to be that the CSPRP is a National Panel which will look at “serious child safeguarding cases in England which raise issues that are complex or of national importance”, and the LCSPRs seem pretty much equivalent to LSCBs insofar as they are a multi agency group tasked with working together to review “serious child safeguarding cases which raise issues of importance in relation to the area”, with the CDRPs looking specifically at cases of child death (SCRs were tasked collectively with cases of serious harm or death).

Nonetheless, it seems fair to assume that the guidance, which will shortly relate to a defunct process, will apply equally to the new set up. I make that assumption because the points within the guidance are all points of basic, established principle and contain no surprises : in a nutshell : judicial independence innit. You can have all the judgments, all the documents the judge had and all the transcripts for your SCR – but judges will not be answering questions, undertaking interviews and senior judges will most certainly NOT be carrying out IMRs (Independent Management Reviews) on the work of their junior colleagues. That’s what appeals are for.

This is pretty much what I said was the position when a group of us were discussing criticism of Hogg J for refusing to engage in the SCR arising from the death of Ellie Butler (See here). This document comes as no surprise, and is likely to have been prompted by the author of that SCR writing to The President specifically to raise this issue with him (as it was said at the time she had done).

One thing I do think odd though, is the implication that it would be effectively unthinkable for one judge to comment on the decisions of another :

  1. It is a fundamental principle that judges do not comment on the decisions of other judges outside the appellate process. This is why it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process…This principle evolved in order to protect the rule of law – it reinforces the idea that the only way to challenge a judicial decision is to do so in court, not to seek to undermine it outside the court process.
  2. This position on SCRs has been followed by Sir Mark’s successors, Sir Nicholas Wall P and, in turn, by me.

This seems entirely sensible until one remembers that there has been at least one occasion where precisely this has happened : the Report to the President of the Family Division on the publication ‘Twenty-nine child homicides’ was prepared by Sir Nicholas Wall, then a High Court Judge, and he said this :

…Having discussed the matter with officials from the Department of Constitutional Affairs (DCA), Dame Elizabeth [Elizabeth Butler-Sloss, then the President of the Family Division] and I agreed, that in view both of the importance of the subject and the Select Committee’s proper concern about it, I should examine all the available court files in all the cases identified by WAFE in which there had been court involvement. I would then report – either to her or, as was more likely, to her successor…[he conducted a file review of various cases]

…a number of queries inevitably arose, and I wrote to the judges involved in the five cases, asking questions and inviting their comments…I have received complete co-operation from all the judges involved, who have been, without exception, both frank and helpful…My assessment of their conduct appears at the conclusion of the Part of the report dealing with the individual cases…I sent a copy of the draft to each of the judges involved for comment prior to finalisation. I have received responses from all five. None made any criticisms of the report or of my comments on the individual cases, and in general each was supportive of my recommendations to you.

As far as I know this is the only time that such a report has been prepared (it is worth noting that the report was prepared in response to the Womens’ Aid 29 Homicides report, and that more recently in response to the more recent Womens’ Aid 19 Child Homicides report and subsequent campaigning by Womens’ Aid the President tasked Cobb J with a review PD12J). It is possible that there are other examples that I am unaware of.
I confess that I am struggling with the difference in principle between the Homicides report, which is to all intents and purposes an IMR, and the assertion that the judiciary don’t scrutinise or critique one another’s work except in the course of an appellate system. Granted, the Wall report was exceptional, but cases like Ellie Butler’s are also pretty exceptional – so it begs the question why an exception couldn’t be / shouldn’t have been made there. In posing this question I’m not suggesting the answer, I’m simply highlighting the apparent inconsistency in approach and trying to work it through in my own mind.
For me, it would have been more helpful for the Guidance to have acknowledged this isolated example, and to have explained the distinction for us dummies. But I guess (ironically) that might have had to involve the criticism of the position adopted by another judge, so perhaps answer I’m seeking is to be found in the silence itself.
It is something I will give more thought to – does anyone else have an answer?

With respect and not a little trepidation…

I find myself this Christmas with not one but two books to review, both by recently retired judges. Both slender and thus swift to read, but otherwise very different, not least because one is written by a former High Court Judge, whilst the other is penned by a retired District Judge. And what different worlds they are.

I’m afraid I’m going to gush about one and be a little bit hard on the other. Which is awkward.

I found The Modern Judge – Power Responsibility and Society’s Expectations (Sir Mark Hedley, Lexis Nexis Family Law, 2016) in my hotel room the morning after the Family Law Awards, fumbling blearily for the kettle. It’s possible that my roomie left it behind when rushing back to court at the crack of dawn, but I prefer to think that after he had compered the award ceremony, Sir Mark Hedley donned his red robes and snuck in silently whilst I snored and left it at the foot of my bed, like the white haired santa of the Family Division. You’ve probably guessed which one I’m going to be nice about…

May It Please You Madam – A Little Book of Legal Whimsy (Neil Hickman, The Book Guild Ltd, 2016) came conventionally, through the post. In fact it isn’t that slender, but it is light in content, well spaced out and broken up with cartoons.

Not long before Christmas I came across one of those catalogues of legal themed tutt, the sort of stuff that over enthusiastic law students seem to think will stand as categorical proof of their dedication and legal knowledge. I think it was slipped inside Barrister Magazine, although I can’t now recall. But you know the sort of thing : carbolic smoke ball tea-towels, unfunny cufflinks, inappropriate gavels and other assorted accessories of pompous try-hardiness. And I wondered to myself who in the hell is this stuff FOR? Do actual practising members of the bar buy this stuff? Or is this just the sort of prop that a certain type of person relies upon to look the part? Perhaps the great unregulated covet such things instead of actual qualifications, like this McKenzie friend with his “proper solicitors briefcase”? Anyway, by the time I had got to the end of May It Please You Madam, I was asking myself the same question – who is this book FOR?

This book should be great. It is a collection of amusing snippets and stories of life at the judicial coal face, much drawn from former DJ Hickman’s own experience at the District Bench, or that of his colleagues, mixed with much material from notorious cases that we all learned of in our time as law students. So it is comfortingly familiar to legal readers, and many of it’s stories will have been heard and told by readers of this blog. But somehow something died in translation and the funny leached out. Told over dinner, or in the judicial corridor or robing room to members of the same community these anecdotes are momentarily funny, sometimes laugh out loud funny. But taken out of context and strung clumsily together one after the other after another and another in print, they just deflate and give an overwhelming sense of ennui. So, for example, the laboured retelling of an email exchange between judges about a court order that mistakenly refers to doughnuts instead of documents was just excruciating to read, as was the reduction into print of the only mildly and fleetingly amusing solicitors’ typo regarding office closure over Christmas (office shit instead of shut). This sort of banal cock up is not special to the field of law (although as one of the few industries still quite heavily reliant upon audio-typing we do have some corkers). But it is the stuff of everyday. And even in a book with “Whimsy” in the title, the material cannot always bear the weight of print. It’s ironic that Lord Wilson in his foreword identifies at  that court room humour arises out of the live spoken word, before giving way to DJ Hickman who skilfully suffocates the humour out of each anecdote by the mere act of writing it down. It is possible to convert legal or courtroom humour to writing, as the recently deceased Gary Slapper proved, but it turns out it isn’t as easy as he made it look.

There are good things in this book, but much of it we have heard before – although I did not know until now that the infamous response letter in the matter of Arkell v Pressdram did not put off the claimant, and that litigation ensued anyway (albeit unsuccessful).

But, I’m sorry to say that I got much more entertainment from the immediacy of the #freelegaltips hashtag that was trending on twitter recently than I did out of this book. I ploughed through to the end, like someone fishing through a bowl of pistachio shells hoping to find one last nut. But I got to the end dissatisfied – the funny bits had been drowned out by the bits that flopped.

I was also left unsure whether this book was intended for lawyers or for non-lawyers : I thought lawyers would mainly have heard it all before and non-lawyers would wonder what all the fuss was about and take it as confirmation of just how dull we lawyers must be – and at moments the author forgot to translate for the non-lawyer and I suspect some anecdotes would make little sense to a reader not conversant in the legalese that the author (rightly) takes the mickey out of.

So, I’m sorry to say that this particular Madam was a little bit underwhelmed. But perhaps the mysterious lot who buy gavel cufflinks, legal advice dice and bears with “worlds coolest lawyer” on their tiny knitted sweater will love this book.

In contrast however, I did very much like Sir Mark Hedley’s little book, The Modern Judge. It is really little more than an extended essay, but it is characteristically humble, thoughtful and thought provoking. It asks some very important questions, and they are questions that we ought to be asking – amongst ourselves within the legal community, and discussing with other members of society. I hope that LexisNexis will market this outside the legal community.

The Modern Judge does not only cover the Family Court and Court of Protection, but it does take those jurisdictions as its main focus, and it is through a conscientious consideration of the wide ranging and really very draconian of powers that Hedley is able to ask wider constitutional questions about the rule of law and the societal consent that is required for judges to exercise their powers.

The question of state intervention in the private lives of families and the tensions between child protection and the right to family life is sensitively considered here, and if ever any person were doubtful that judges appreciate the weight of responsibility they bear they should read this book. Of course Sir Mark is not just any judge, he is a judge who was already known as humane and wise, and whose wise words about the need of society to tolerate diverse standards of parenting including the barely adequate are often quoted in court (although Sir Mark quipped wryly at the first Transparency Project conference that they were only ever quoted by the side about to lose) (see Re L (Care : Threshold Criteria) [2007] 1 FLR 2050, approved by the Supreme Court in Re B [2013] UKSC 33). But although one cannot promise that every judge is a Sir Mark, those who imagine judges as wielding their powers in a cavalier and thoughtless way may be reassured to read this. The seriousness with which the task is treated by Sir Mark is something which we are entitled to expect from all members of the judiciary.

Hedley draws a number of vignettes of cases he has tried over the years, illustrating perfectly just how impossible some of the questions we ask our High court Judges to answer really are – anyone who thinks its a cushy job should read this book. He draws from his CoP experience as well as family, including forced adoption cases. He reminds us of the relative recency of adoption as a legal concept, but does repeat the error of many other illustrious colleagues in stating that of all of Europe we are the only jurisdiction to do non-consensual adoption (we’re not – google Clare Fenton Glynn). But the broader point about how our type of adoption is culturally alien to many living in this country and falling under the jurisdiction of the courts of England & Wales is well made. He acknowledges, refreshingly, that :

I do not believe that we have yet achieved a consensual view in our society on this [adoption], although current policy of all main political parties is very much in support of adoption. The problem is that the concept of adoption is attractive in our society and has, at present, strong official support. The difficulty comes when the story of an individual case is told, the true loss to parents is fully understood, and the consequences of adoption laid out in specific terms. This difficulty becomes the greater if there is personal knowledge of the family, and greater still where – and this is often the case – the parents’ failure to care is not culpable but, because of a lack of ability, not brought about by their own actions. These are tensions inherent in our current approach to adoption and child protection.

Through these examples Sir Mark sets out the irreconcilable conundrum facing every family judge daily – how to exercise one’s discretion so as to draw the proper balance between protection and private life.

It is clear from reading the book that this is not a new topic for this judge, but something about which he has given anxious thought throughout his years at the bench. He is obviously alert to various familiar areas of particular public public anxiety, debate or complaint :

  • the differing standards of proof as between criminal and family courts, the justifications for those distinct approaches, and the practical problems this gives rise to
  • the fallibility of witness evidence and of human ability to reliably assess it – and thus the inherent difficulties of a system heavily reliant upon oral witness testimony
  • the  danger of a lack of accountability in the exercise of discretionary power – and the particular protections against the arbitrary exercise of state or judicial power afforded by our Human Rights legislation
  • the inevitability of injustice through human error in some small number of cases
  • the tension between doing justice in public and the need to protect privacy and the dangers of a public who are unaware of the judicial powers that are being exercised in their name

On this last point he says this :

While I was a serving judge I became increasingly concerned that many in society are simply unaware of these powers, especially the discretionary powers, vested in the modern judge. One of my purposes is to offer some description and explanation of those powers. In a democratic society, these powers should be exercised by the judges with the consent of that society. If there is no proper understanding of these powers, how can there be proper consent to their use? Moreover, the use of these powers involves society placing extensive trust in judges to exercise them properly. On what basis may such trust be given? Is it a trust that our judges can actually justify or fulfil? These are some of the issues on which I would like to reflect and which I believe to be of some importance in the life of our society, with its inherent sense of fairness and desire for justice.

Later he says :

The more I reflect on this question of judicial discretion …the more I am conscious of the power which society has put into the judges’ hands, and which generally Parliament has shown no desire to curtail. The truth is that the system can only work credibly for so long as the judges received (and, of course, deserve) the confidence and consent of the society in whose name they act. That trust must be predicated on an understanding of the nature and extent of those powers, and that is one of the principal purposes of this book. The reality is that in exercising these powers the judges are not just reflecting society, but are making an active contribution in influencing its development. That is why…the tension between protection and autonomy – is so important.

Thus, The Modern Judge is an exercise in transparency.

Of the media Hedley says :

If it can be said that the media are a little too ready to respond to individual complaints against the state, and that the agents of the state are a little too defensive in their response, it does not hide the fact that there are real issues and that there is all too often more than one reasonable view and more than one reasonable outcome available. 

I don’t know how many parents would be likely to read this book but I’d certainly recommend it to them, as well as to judges, lawyers and social workers alike. As well as to a few journalists.

Book Review : ‘Court of Protection Made Clear – A User’s Guide’

This review is a guest post written by  Sarah Phillimore, barrister at St John’s Chambers (@svphillimore), Bristol.

‘Court of Protection Made Clear – A User’s Guide’
Consulting Editor: The Honourable Mr Justice Keehan
Authors: Clare Wills-Goldingham QC, Marie Leslie and Dr Paul Divall (Bath Publishing, 2016)

 

book cover imageThis book sets out to be a helpful first port of call for the lawyer and to shine a light on the practice and procedure of the CoP for all who use it; this will encompass a wide variety of people – as family or friends or as professionals in other fields such as care home managers. It is written by two barristers and a consultant psychiatrist.
It is a timely book – the CoP is making great efforts to cast off it’s ‘shroud of secrecy’. The transparency ‘pilot’ opening up the CoP is most likely here to stay. Together with the recent practice of transferring cases to be heard at ‘regional hubs’ it is inevitable that increasing numbers of people are going to be made aware of the kind of issues that CoP practitioners must grapple with. Any attempt to demystify this process is to be welcomed. Given that CoP cases involve only those who lack capacity to make decisions, a heavy responsibility thus falls on others to determine what is in the best interests of some often extremely vulnerable people; it is important that their decision making capacity is not hindered by the avoidable stress and strain of trying to deal with an unfamiliar legal process.
Those coming to the CoP for the first time – and even I suspect those who are more familiar – are faced with a complicated network of rules, regulations and developing case law at the highest level. It’s a lot to take in. The stated aim of the book is to lead us through it and offer a practical guide.
The authors make good their promise to use plain English (I particularly like their description of mediation – ‘often considered to be people sitting round a table getting nowhere fast’) This breezy and colloquial style is a refreshing change from many of the legal texts I have to grapple with.

One of the major advantages to this book is that it is linked to a website – courtofprotectionhub.uk which provides links to the relevant forms and will continue to update the changing case law. This is an essential adjunct to an area of law such as this where the case law will require continual and careful evaluation.

It is very thorough – there are 21 Chapters in total, first offering an overview of the main legislation, and issues of capacity. Chapters 6-8 describe the applications that can be made and preparation for the hearing. Chapter 9 sets out a very practical description of what happens at a hearing and what you should do if attending as a lay person. This is exactly the kind of calm and sensible advice which will be very valuable for a nervous friend or family member who has very little idea what to expect. The remaining chapters deal with particular aspects of the CoP such as explaining the difference between ‘property and affairs’ and ‘health and welfare’. ‘Deprivation of liberty’ looms large at Chapter 15, which will be no surprise to anyone with even passing acquaintance with that issue.

This book does what it says on the tin. It is a good, clear and helpful guide for the relatively inexperienced lawyer or the worried family member. I particularly like the Glossary which has clarified a few hitherto mystery phrases and acronyms.