Just a little brain teaser someone set for me this week: what if a bench of two magistrates hearing a contested application for an interim care order (a third being unavailable) cannot agree? (in our example both threshold and disposal are in issue). What is the correct course of action? It is more tricky than at first it may appear, and I have been mulling it over for a couple of days and settled on a quite different position than my initial thoughts. Please post your views in comments - I'd like to hear what approach others would take to this hypothetical. It may become less hypothetical as the courts come under more and more pressure. 2 person benches are more common these days and likely to become more so.
First of all, the Magistrates Court Act 1980 does give the court power to sit as a bench of 2 in family proceedings. So there is no problem there. But what the Act doesn't tell us is how a 2 person bench should proceed where it is equally split. Common sense and an application of principles commonly adhered to in family law and care cases in particular tells us that the possible answers may include these:
- Make no order
- Adjourn for rehearing before a fresh bench - giving reasons setting out what has been agreed on and where the disagreement lies For example, is it agreed that threshold is crossed?
- Adjourn for rehearing before a fresh bench - saying nothing substantive about the nature and extent of the disagreement.
- Retire again, have a cup of tea and a dunker, breathe deeply and count to ten, and bloody well talk until you agree!
- Arm wrestle. Best of 3.
- Let counsel decide.
Let's take these in turn.
Make no order
This was an early frontrunner, but it fell before the finish. It is superficially attractive to adopt a basic mathematical approach: you have a 50% yes vote and a 50% no vote. 50% is insufficient to tip the balance of probabilities in favour of the applicant, ergo application fails. That's what my gut told me was the correct approach. However, not only does this not bear scrutiny very well, but caselaw also appears to disagree with me (excuse the intestinal pun), as will be seen below. It is easy to think about cases like Re B (children) (sexual abuse: standard of proof)  UKHL 35 (and that line of authorities preceding it) and draw from them the general notion that the court must adopt a binary approach, must adjudicate one way or another. Which is true insofar as one is talking about findings of fact made at a final or fact finding hearing, but not really apposite in respect of questions of interim threshold (where the requirement is reasonable suspicion of significant harm / likelihood of siginificant harm only) or questions of disposal if threshold is met. The notion that if the bench can't agree they have to bin the ICO application that I rather glibly held up as the "obvious" right answer is less so on reflection.
Adjourn for rehearing before a fresh bench - giving reasons setting out what has been agreed on and where the disagreement lies For example, is it agreed that threshold is crossed?
If they really can't agree (I thought) they should at least tell us what they can't agree about! But again, this begins to look like a less satisfactory proposition the more one imagines the consequences. The bench could say (in greater or lesser detail):
- we agree threshold is crossed on X basis, but can't agree on disposal
- we agree threshold is crossed but don't agree on the basis, and don't agree on disposal
- we don't agree as to whether threshold is crossed, nor on disposal
But regardless of which of these scenarios is spelt out - what is the subsequent bench to do with that information? If there is to be a rehearing it must be just that - a full rehearing. A subsequent decision that somehow took into account or relied upon the views and findings of the magistrates to the extent that they agreed would clearly be inappropriate. The evidence would have to be heard afresh and the fresh magistrates would need to form an independent view of that evidence without regard to the evidence given previously or the earlier magistrates view of that different evidence.
Adjourn for rehearing before a fresh bench - saying nothing substantive about the nature and extent of the disagreement.
Imagining how a rehearing would actually need to operate to itself be procedurally sound, as set out above, renders it obvious that if there is to be an adjournment and rehearing: the less said the better. But again, as to the primary proposition that the matter would have to go off for rehearing because the magistrates couldn't agree: my instinctive reaction was that this would be a total abdication of the responsibility of the court to make a decision and -particularly in the case of an ICO - to make it promptly. To say "we're not sure" is anathema to the family courts, but again this is drawn from the need to have a sound and reliable factual basis in order to plan for the long term and to safeguard in the long run, where an interim approach may be rather different. But caselaw appears to suggest this is indeed the correct approach.
There are two cases that appear to be relevant - (incidentally I take no credit for locating these, which goes entirely to Sarah and her very clever contact - thank you both. Whilst I had rooted through Stones Justices Manual on Lexis I had missed the relevant section - a salutary reminder that paging through a real paper book can sometimes produce results that no Boolean search wizzardry can manage).
Fussell v Somerset Justices Licensing Committee  1 ALL ER 44 was a case where a licensing bench was equally split. It was held that, although the justices might have refused the application on the ground that the bench was equally divided, they did not do so, but did what they were equally entitled to, namely, adjourn the application. The application having been granted at the adjourned hearing, the matter was properly before the confirming authority, and the case must be remitted to them with a direction to adjudicate on it.
R v Redbridge Justice ex parte Ram  1 ALL ER 652 was a criminal case where it was held that where a bench of two justices hearing an information charging a criminal offence are unable to agree on a verdict they are obliged to adjourn the case for hearing by a bench of three justices so that the duty imposed on the court by s 9(2) of the Magistrates' Courts Act 1980 to either convict the accused or dismiss the information after hearing the evidence and the parties is discharged in relation to the particular case. Furthermore, the duty to adjourn being obligatory and not discretionary, the accused has no right to make representations against the case being adjourned to a bench of three justices. The Fussell case was considered.
Section 9(2) of the MCA specifically relates to criminal cases and imposes on the court an either-or duty. There is no equivalent provision in respect of family cases. The view of the court in this case was that quite apart from this provision however, it was desirable as a matter of principle for the court to hold a fresh hearing where a bench of two cannot agree. Whilst this case is distinguishable as a result of the different statutory context in which it was decided, it is likely to be persuasive authority.
One could argue that the Fussell case is equally pertinent, but even if that were correct, it leaves us in the position where the bench have a choice as to whether to refuse the application and make no order or to adjourn. And I think that in the context of interim orders in care proceedings it is likely that the court should err on the side of caution, and choose the option that minimises the chances that the child will be left exposed to risk of harm. In the context of child protection it is difficult to argue that a protective order should be refused where at least one magistrate has been unswervingly convinced that the evidence is sufficiently cogent to have established a risk of serious harm (to the interim standard). The converse argument (namely that the state should not be sanctioned to intervene unless sufficient evidence to persuade the court of the need for that intervention has been produced) cannot be raised at this juncture: the decision to adjourn for rehearing is just that, a fresh start and a fair trial for both parties. If the evidence is inadequate it will result in no order at that stage and no prejudice will have been suffered. But if the evidence is such that it warrants an ICO being made, the child will have been protected. It is through this imagined hindsight that one can see that the right balance to strike between the need to protect and the need to avoid prejudice to the parents is to start afresh.
So, having pondered this conundrum for some good while, I have talked myself out of my first two propositions and, whilst I remain attracted by the ideas of just locking the bench into their retiring room with a pack of custard creams until they slide their reasons under the door, or organising some physical contest, I have come down in favour of a bare adjournment to a rehearing with a fresh tribunal. I say "tribunal" advisedly - because in fact, there is another alternative: adjourn for a rehearing by a district judge (transferring to the county court). No danger of indecision there.
[Amended 10.57 27/01/11: Thanks AP for suggesting that we all make it standard practice to draft in or request the words "before a bench of 3 magistrates" to be included in all orders fixing contested hearings]