The Double Digit Diet

View 10 is out and it’s a humdinger. Quite apart from alerting me to the existence of View 9 (which seems to have gone straight to DVD (AKA Family Law Journal) bypassing the usual email cascade – every other View is in my inbox not less than 99 times but View 9 escaped me.) it is a Presidential vista of panoramic dimensions.

Anyway, back to View 10. The humdinger. I should not have read it so soon after having spent an hour updating the FLBA Guidance Locator page – I was already feeling slightly woozy from a self induced guidance overload caused by perusing the sheer quantity of guidance and presidential vistas that we were favoured with in 2013. By the half way down View 10 I felt I had really overindulged. And as I read about the several courses of further guidance that were still to come I was wondering if I would make it to the end of the view, let alone beyond the first week of the SFC.

SFC. One Court. A million rules. I have that overwhelmed feeling again. The one that I had when I first created the Guidance Locator as a coping strategy, a means of creating the illusion of control.

Anyway. I scrolled down beyond the SFC, past the PLO, past the CAP – beyond the acronyms and through Transparency, bundles and arbitration. To recent cases. And then I sat up, pushed away my bucket, and peeled back the wrapper of one more “wafer thin [judg]mint”. Well, two actually.

And they were each a humdinger in their own right. And oddly I feel rather better for reading them. So much better in fact that I’m able to stop with the alimentary metaphors and tell you what they say.

Of course, whilst I was busy with my head in a bucket, Suesspicious Minds was busy getting there first and stealing all the good straplines as he always does, with The war on cut and paste, which is about the decision of Pauffley J in Re NL (A Child) [2014] EWHC 270 (Fam). I will try say something that complements that post, rather than duplicating it. Fortunately this liberates me somewhat from having to fillet the judgment, as it’s already been done (god sorry, another food metaphor) and leaves the field wide open for unstructured ranting. So here’s what I want to say about the practice of writing facts and reasons for magistrates.

I remember it happening from my earliest days at the bar. I was flabbergasted as a very wee junior barrister to see facts and reasons drafted by LA lawyers adopted in toto by magistrates, but in places at least (including certain courts in London) it seemed to be normal practice. I recall one particular case where I acted for mother on a discharge application, where precisely that happened. It happened on the very same day that I had attended court with a skeleton argument in support of my client’s case, which the Magistrates refused to read, even after vigorous argument, because I had not had prior permission to lodge it (how prescient of them to insist on rigorous adherence to rules). Instead I forced them to listen whilst I made my submissions orally and at length. It was excruciating. If I had been a more experienced practitioner I would have dealt with it differently, but I was a very junior barrister in a remote court, surrounded by local lawyers and a legal adviser who all knew one another and all sung from the same hymn sheet (literally) and who were quick to tell me how things were done “around here”. The decision they made was probably the right one on the facts (the only one really), but it made me feel sick for a long time afterwards thinking about that case.

I don’t see it much in my practice in the West Country. Occasionally in cases where an ICO is made by consent, maybe without opposition, advocates will collectively draft and agree facts and reasons in order to get the matter dealt with promptly. That has advantages and disadvantages – it is difficult to explain to clients even when they are in agreement with the order, but it does mean that a volatile or distraught client can get a traumatic day at court over with sooner. And it does mean that there will (hopefully) not be legal flaws in the reasons, that the facts will be accurately and neutrally set out, and prejudicial and unnecessary findings that will cause upset or difficulty further down the line will be avoided.

Occasionally when in an unfamiliar court I have seen advocates drafting facts and reasons – they rarely bring them with them. I would expect to be able to make comment or submissions on them – I don’t understand the point in Re NL where it is suggested an advocate might need temerity to do so – this is what we do, we fearlessly advocate on behalf of our client. We are paid to have bloody temerity! But I suppose that I think back to the wet-behind-the-ears me that dealt with that discharge application so many years ago and far far away, and I think that its not about a lack of fearlessness as about having the nouse to know how best to challenge. I wasn’t afraid of pissing the Magistrates off on that occasion, and I did so, although it did not avail my client at all. I have not recently encountered submissions being sent unilaterally to the magistrates. But magistrates are still prone to adopting large chunks of other people’s documents wholesale – guardian’s report, case summary, whatever. It is lazy and dangerous and legal advisers should not let it happen. I think that it is happening less since B-S.

However, B-S in my view has had some other knock on effects. Since B-S there have been mutterings about listing practice wherein for every full day of evidence the Magistrates are said to require a half day for considering their reasons. Of course, it does rather beg the question of what kind of level of evaluation of evidence and balancing of options was going on before B-S – but such a listing practice does cause real difficulties. And it is not cost neutral. A 2 day hearing becomes a 3 day hearing. Fine, you can have your Magistrates for the price of three bus tickets and a pack of chocolate hob nobs, but you have usually at least 4 lawyers sitting, thumb twiddling, playing slappy birds or whatever, waiting. Waiting. Waiting. For the Magistrates to eat their hobnobs and make up their minds. On one level it’s nice work if you can get it – but god it is dull. And frustrating. And a waste of public funds. And I’d rather be earning my money.

And so you see emerging a different problem: The legal adviser who asks …expects…demands facts and reasons to be prepared for the Magistrates. Because it’s all got so complicated after Re B-S. And it’s all too tricky to explain to the Magistrates. And the Magistrates are unrealistically overlisted And they might get chocolate smears on the reasons if they wrote them themselves (I’m back to food aren’t I?). So, in an entirely unselfconscious uber ironic twist of stupidity, the practice of someone else putting words into the mouths of the decision maker has begun to re-emerge.

Which is how I ended up spending an entire morning at court on a matter which was AGREED, ultimately being paid not for two units of time but three. One for the time it actually took to locate the other advocates and confirm everybody really was agreed. One for the settlement supplement advocates are entitled to when a matter settles at IRH. And one spent checking facebook whilst the legal adviser and the Local Authority became engaged in a passive-aggressive standoff about who was going to do the facts and reasons. The Local Authority, quite rightly declined to do so. The Magistrates AND legal adviser spent over an hour waiting for someone to crack before finally giving in and doing their job themselves (which of course took a further hour). I despair really. It just ISN’T the role of any party to do this, not the Local Authority or any other advocate. And it is not the role of the court to sit on lawyers to do this for them, austerity or not. There has to be a point where the court takes responsibility for it’s own functioning. We’ve long lost the battle on court orders. Orders are de facto our responsibility these days, and woe betide anyone who fails to successfully securely e-file their order on time. Typing a note of judgment? That’s also a new one. I wish I’d never learnt to bloody touch type as now I’m the go-to girl for contemporaneous typing of judgments. In truth I often volunteer where it seems likely that a judgment will be needed for something (for example to send off urgently to the LAA to secure prior authority) – it’s just easier. But I realise with regret that this is the thin end of a wafer wedge now that the transparency provisions are in force. I may have to burn my laptop or cut off my own index finger.

So yes. I’m pleased for a number of reasons that someone has finally told the Magistrates to put down their hob nobs, engage their brain and do their own flipping facts and reasons, leaving us to draft our grounds of appeal all by ourselves when they get it wrong. It’s one less responsibiliity for the lawyers, when so many new ones are being heaped on us every day.

And do you know something else? The facts and reasons that they do by consent / without opposition are good training for the contested ones.

As for the other points raised in the judgment – I read with mouth wide open the bit about the paper based “triage psychological assessment” and the rationale for interim removal of that baby. It beggars belief – and I want to say to any parents who may think that is in any way the norm that it is NOT. Occasionally I have seen an attempt by a LA to rely upon a paper based report, but it takes but a small amount of waving around of the appropriate authorities, and a bit of basic advocacy to see off reliance upon such reports. And the errors into which the bench fell in terms of the basis for removal were pretty fundamental. It is unclear from the judgment quite what went wrong: Pauffley J says she would “like to believe” that Re LA was cited – but it is not clear that it was. It must be the case that either Re LA was not cited – in which case I can only assume the lawyers were so gorged with hob nobs or focussed on angry birds that they forgot to refer to this piece of suitcase authority* – OR it was cited and a) ignored by the bench / legal adviser AND b) not incorporated by the LA in the facts and reasons they drafted. Really, the mind boggles whichever scenario you choose.

The second authority is A Local Authority v DG and others [2014] EWHC 63 (Fam), incorporation of which into View 10 gives Keehan J a pat on the back following his pasting in the Court of Appeal last week. That authority is essential reading and also deals with an established but not procedurally nor legally correct practice of witholding statements of evidence in care proceedings where there are concurrent criminal proceedings AND the whole non-compliance issue, which is so Heston Blumenthal at the moment (and which is going down about as well as snail porridge). What with that, the facts and reasons thing and the tart reminder of recent authority on necessary procedural issues in care cases with a foreign flavour it seems as if we family lawyers are really being expected to know some law. We shouldn’t complain. We’ve been joking for years to our “real lawyer” colleagues that “there’s no law in it – it’s all discretion”. Gone are the days when you could get by on a working knowledge of s1 & s31 CA and s25 MCA. Of course those halcyon days never really existed but such an idyll is unimaginable now. And, although I hate to say it, when the President says we need a culture change he is right. Pauffley J may have coined the best phrase of the year so far when she says in NL, “Justice must never be sacrificed upon the altar of speed”, but I’m going to coin another (It’s not nearly as good mind you) : “Broad brush discretion is only part of a healthy balanced diet.” Yes, I’m back to the food metaphors. For you see, we need to be reminded of useful information like that a diet of discretion may turn our brain muscles into flab. We need a structured programme of regular mental exercise to keep us at our peak. And the same goes for Magistrates and Legal Advisers. We can’t do their workouts for them. Munby J, as improbable as it may seem, is our personal fitness trainer (yes, visualise it – I dare you) – shouting at us in his tracksuit, blowing his penetrating whistle in our ear, stop watch at the ready. We hate him during a workout, but will thank him for it later.

* I’ve just coined this phrase to describe the kind of authority you carry round in your suitcase like a legal first aid kit, just incase.

4 thoughts on “The Double Digit Diet

  1. Male Northern Lights

    That was a bit of a mouthful, Lucy.

    Oops, sorry!

  2. The value of Booker is not that he gets his facts right but that he makes a subject topical and keeps it in the public domain.

    He was among the first to call out the EA for the damage they caused to the Somerset Levels. Facts later emerged that the EA was frittering some of their money away in support of Gay Rights causes instead of concentrating on the job at hand.

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