Everyone's at it. Now the Law Society has launched a JR of the LSC in respect of their tender process in family matters. See the Gazette. As reported yesterday another JR application yesterday got off to a positive start, with Collins J describing the LSC's approach as irrational. That matter was adjourned off for 8 days. So that's 2 JRs, and if Nearly Legal is right (see yesterday's post) there may be more to come. Who says there's no legal news in August?
On Monday Panorama showed a report on the journey through the family courts of a family accused of causing serious non-accidental injuries to their baby son: 'Parents' Child Abuse Nightmare'. After lengthy police investigation and care proceedings no prosecution was pursued and a finding of fact hearing exonerated the parents, the Judge holding that there was no cogent evidence that causation of the injuries was non-accidental.
It was a shocking story, perhaps more so for those who do not work in the system and have not been caught up in it in respect of their own families. On another level, for care practitioners like myself it was however in many respects unremarkable - although the case broke new ground in respect of issues concerning publication of judgments and the identity of experts the care proceedings themselves raised familiar issues and followed a well worn path. What was unusual in terms of the care proceedings was the total failure of the Local Authority to make out threshold.
There were several predictable references to the secrecy of the system, though the system was not so secret as to prevent the programme from being made. The fact that permission had been given for the proceedings to be reported did not appear to attenuate the hyperbole about the cloak and dagger approach of the courts (In fairness though, the lengths to which the parties and the BBC had to go to get permission were not insignificant as can be seen from the number of citations which follow at the end of this post).
In general I thought that the process was explained pretty well, and accurately. However I thought that towards the end it rather descended into a sort of tabloid style. I am thinking in particular of the naming and shaming of 'the experts who got it wrong', which rather undermined what had gone before and was frankly rather unfair to the Community Paediatrician whose referral triggered the child protection processes. It went as follows:
'The experts who got it wrong:
Dr Carl Johnson the police expert whose evidence suggested a history of abuse (cue mugshot on wall of shame)
Dr David Vickers the community paediatrician who told police that without an explanation for Williams injuries the likely cause was that it was inflicted. The judge did not accept this argument. (cue mugshot on wall of shame)
Professor howard bird the rheumatologist who suggested hypermobility. The judge found that he had failed to be guided by a duty of professional detachment. (cue mugshot)'
What was not adequately teased out to my mind was the fact that the evidence of the community paediatrician who had made the initial referral was 'rejected' only after further expertise was drawn in for the purposes of the family court proceedings: i.e. the court process had served to vindicate the parents in a way that could not have taken place had no court process been commenced. It was a significant omission in my view not to make clear the distinction between professionals treating on the ground offering provisional opinions about the risk of NAI for the purposes of initiating child protection processes, and the considered opinion of experts instructed specifically for the purposes of conducting a rigourous after the fact analysis of the cause of injury on the basis of a vast amount of additional evidence and with the benefit of a great deal of hindsight. The insinuation from the programme was that the evidence of the community paediatrician involved prior to the commencement of proceedings was rejected as in some way substandard, or that he did not do his job properly, when it is not in fact at all clear that this was the case. The Radiologist was the subject of criticism and this was spelt out, and the listing of them together as 'the experts who got it wrong' tends to suggest the court was similarly critical of Dr Vickers.
Unfortunately, although permission was granted to report it, the original judgment in the care proceedings does not appear to be reported although extracts from it appear in the subsequent judgments about publicity. It is not clear from that material what role the community paediatrician played in the care proceedings, but most likely he was a witness of fact if even called, who will have testified simply to the child's presentation on the day. It is unlikely that he offered an opinion on causation to the court as he was not an independently instructed expert in the case, if indeed he gave evidence at all. There is no suggestion in the material available that he was criticised by the Judge, even though her conclusion was that there was a non-accidental explanation for the injury. A child protection professional must approach possible NAI from the perspective of protecting a child whilst investigation and judicial processes are carried out: there is a necessarily cautious basis of operation based on risk. It is only subsequently that the judge enters the arena and she does not deal in terms of risk but in terms of fact.
The fact that the court, taking into account all the evidence, concluded that findings could not be made and that NAI did not take place is not equivalent to suggesting that the individuals named were professionally substandard, wrong or incompetent. Had Dr Vickers not made a referral raising concerns about NAI he would have been in gross dereliction of duty and no doubt criticised for it. The parents in the programme acknowledged as much, clearly accepting that the child protection process had to be worked through, however awful. The programme fundamentally confused the identification of risk and triggering of child protection processes – which is a process designed to further investigate suspicions of harm rather than to conclude upon them – with the considered opinion of experts instructed to assist the court in reaching conclusions about what did or did not happen.
Although in the event Munby LJ in did not grant anonymity to the treating clinicians, he did say this in his judgment ( EWHC 538 (Fam)):
'there is a significant and important wider public interest in protecting the anonymity of treating clinicians in child protection cases in order to promote the effective working of the child protection system; if treating clinicians are publicly 'named and shamed' and subjected to vilification for merely doing their jobs properly, there is a legitimate concern that they will become understandably reluctant to make child protection referrals and/or consciously or subconsciously require a higher standard of proof before doing so; or they may simply refuse to accept the personal risks of becoming involved in this area of work – consequences all of which would be profoundly against the public interest.'
This would seem to be a case in point.
I was also struck by the concluding remarks which I thought implied that in some way the campaign fought by these parents was responsible for some sea change in the approach of the courts, and indeed was instrumental in bringing about the Children Schools and Families Act 2010. Of course cases like these of perceived or real injustice and heartbreak are many, and it is the collective pressure applied by individual parents and campaign groups, as well as the advice of professionals from within the system that have brought about some change in this area and have made the question of transparent justice a matter of serious public debate. The Ward case is one example of the incremental shift in approach which has been gathering pace for some time.
Jeremy Vine, during his brief slot topping and tailing of the report also suggested that the law had now been changed (as a result of the Children Schools and Families Act 2010) so that experts could now routinely be identified in the way that the experts in this case had been. He said:
'And in the final week of the last Parliament, a bill was passed which rubber stamps the Ward ruling that paid expert witnesses can be identified.'
(Of course two of the three professionals the programme makers crowed about having obtained permission to identify did not fall into this category). This is not an accurate representation of the legal position, not least because the CSFA has yet to be brought into force. I think that viewers may well have understood from the programme was that they can name experts and tell the world what experts have said about their family and why they were wrong. In fact even when (if) the CSFA is implemented the press will be able to report only the name of the expert. The contents of any report will be classed as ‘sensitive’ and not publishable without permission, the background to its having been ordered is likely to be largely unprintable because it may identify the family and the parents themselves are not permitted to publish any information at all. Even if the press considered the bare bones of the story which are permitted to be published to be newsworthy they would only be able to publish information that they had gathered from attending the proceedings. There is of course facility under the new provision for specific application for permission to publish more, but this is already the case - and is the process used by the Wards and the BBC in order to make and air the programme.
Far from the shift in the law that Panorama insinuated this case brought about, the situation remains and will remain in broad terms the same on this point (subject to any further statutory amendment). There is provision in the Act for relaxation of the reporting restrictions in future, but there is an 18 month moratorium from the date of implementation on that, and a slew of hoops that must be jumped prior to that being permissible under the act, including an independent review and public consultation.
I thought it was a shame that a programme that quite carefully explained the court process and the reasons why child protection professionals had to take the action they did in a balanced way, was spoiled by basic legal inaccuracies and the temptation to find a way to engineer in a few punchy soundbites.
The judgments in this case (excluding the original final care judgment) can be found here:
Nearly Legal has posted a really important blog post on the LSCs shifting position on the question of matter starts given to firms under the recent tender process. He suggests that the LSCs new position may now put it in breach of its own tender rules and at risk of legal challenge from firms who were unsuccessful in the tender bidding process.
If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.
Email from a colleague:
Mr Justice Collins also said the ‘tick-box’ exercise adopted by the LSC was not appropriate for tendering to provide a public service that is designed to ensure access to justice.
Collins made the comments during a hearing in relation to a judicial review of the social welfare tender process which has been lodged by Birmingham firm The Community Law Partnership (CLP).
CLP claimed the criteria and scoring system used by the LSC to award contracts was irrational, because the system rewarded firms that took more appeals to the upper tribunal. It said firms that were more successful in the lower tribunal were penalised.
CLP, which specialises in housing law, had unsuccessfully appealed against the LSC’s decision not to award it a contract.
The judge said: ‘I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational.
‘How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?’ he said.
Collins added: ‘If firms have a good record of ensuring they succeed in the lower tier tribunal, then appeals to the upper tribunal won’t be needed. To adopt a criteria which looks to the number of appeals to the upper tribunal and punishes those who do not need to appeal to it, because they are successful in the lower tier tribunal, is utterly absurd and totally irrational.’
He said: ‘There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.’
Collins asked counsel for the LSC, Peter Oldham QC, if a firm’s reputation could be taken into account or whether it was simply a ‘tick-box exercise’.
Oldham replied: ‘I’d hope they’d take everything into account,’ but said the LSC had to comply with public contract law and could not exercise discretion.
Oldham said: ‘The tender invitation went out last year. If they wanted to argue about the criteria they should have done it then, not now.’
But the judge said: ‘Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.’
Collins adjourned the hearing and advised the LSC to ‘consider carefully’ its position. ‘If you fight this and lose it, you could set a precedent,’ he warned.
Collins said that if the LSC’s decision not to award a contract to CLP remained unchanged, he would expect a judicial review to succeed.
‘I take the view that it’s not only arguable, but it would be difficult to dispute that the criteria relied on to mean this firm didn’t get a contract is totally irrational,’ he said.
POST POST SCRIPT: Nearly Legal has also posted on this JR. I understand the full hearing is scheduled for c 10 days time. Watch this space...