The trans debate (no, not that one)

Sorry. Cheap headline, it’s not about that. Been talking to a mate about transcripts. Yeah, that’s how we lawyers roll.

We were pondering the judgment of Lord Justice Peter Jackson in M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404. Ostensibly it’s (another) judgment about leave to oppose adoption – but it also contains a potentially important bit of guidance about transcripts.

It’s only short, so you can have it in full:

Transcripts of judgment in placement order proceedings

5. A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
6. A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.

7. Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

I’d thought it was pretty straightforward: the LA must always ensure it has an accurate record of the reasons for a decision about adoption – If there isn’t a written form in existence the LA must get one. They will be needed for the benefit of the child later on – either to assist the court in the case of any application for leave to oppose / revoke the placement order or for the benefit of the child for some other reason – for therapy or life story purposes.

But I gather there may be some concern abroad that this might lead to local authorities expecting advocates to agree notes instead of paying for a transcript OR trying to get the legally aided parties to pay a share. To which my response was along the lines of: ‘Whaaaaat? I don’t flipping think so!’

My recent experience (for what it’s worth), independently of and prior to this judgment, is that when I’ve suggested the LA obtains a transcript for later life story work / for the child as an adult or for the assistance of carers or therapists, nobody has objected or suggested that the cost should be split. It has just been accepted as a part of the LA’s responsibility.

My mate however, suggested that the LA will simply tell their advocate to sort it out and agree a note, without increasing the fee. Some might try it, I concede. But of course this wouldn’t only place a burden on their own advocate, it would also place an additional burden on everyone else. And personally, I think it would be legitimate for those advocates to object (pssst, and I think you should).

There is (of course) a general duty on an advocate to keep a note of proceedings, and to agree a note of judgment where its required – but typically that might be when there is an urgent appeal (see PD30A), or where a recording is not available for some reason. But an appeal or missing recording is not a frequent occurrence – it is the exception not the rule. This judgment isn’t about the exceptional cases, it’s about the generality (the majority).

In most adoption cases the advocates will (bar the LA) be on graduated fees. It cannot be right that now in almost all such cases an additional burden is placed upon them to agree a note of what can often be a really lengthy judgment. In fact in my experience a judge will often explicitly say ‘oh you don’t need to take a note, i will order a transcript’. And I love those judges a lot (though still find myself compulsively typing ‘just in case’).

More to the point, the logistics of getting four (plus) advocates to agree a note of judgment in multiple cases across their caseload doesn’t bear thinking about. It’s bad enough getting replies about the order. I just don’t see it working. We manage to sort notes of judgment occasionally, but not routinely. Consider (I wince) what happens when a judge requests help with anonymising a judgment. Yeah, big fat tumbleweeds. Not happening.

But I am not even sure one needs to revert to logistics to ‘win’ this argument (should one ever need to have it). The legal aid agency won’t pay for a share of the costs of a transcript without cutting up rough, and solicitors just want to get their cases closed and billed once judgment is delivered (and if the LAA were suddenly expected to contribute to many hundreds more transcripts each year I expect they’d sit up straight and start actively refusing). The advocates should not be expected to pick up the ‘cost’ by doing this work for free.

But the answer is in Peter Jackson’s judgment (it always is #amirite?): the purpose of preserving the written record is to facilitate the care plan and to benefit the child. Even in the absence of any application for leave to oppose, a purpose of general application across all adoption cases will be that the child will need this key document on their file. It is a document that the local authority needs in order to fulfil its obligations to the child. Much as a LA pays when it commissions an ISW to fulfil its statutory obligations to assess, here it must stump up to ensure it has a clear record of the decision which underpins its work going forwards. ‘Elementary’, (says) my dear Jackson.

So: The Local Authority should pay. Legal aid lawyers should resist their client’s certificate bearing a portion of the cost burden on this basis, and local authority lawyers should advise accordingly.

Ensuring there is a record of the decision and its reasons is primarily a matter for the Applicant and / or the court (though I don’t rate the argument that the costs of such a judgment should be at public expense because if that were so it could be argued in almost every single case regardless of the ability of the parties to pay – and in general terms the court discharges its duty to record decisions by recording the hearing and making it available for the purposes of a transcript on request). As the need to ensure there is a written record is a general requirement across all cases in this category, I don’t think its for the individual advocates in individual cases to pick up the tab as a matter of course here. And from a practical point of view this is in fact a substantial extra burden on overworked advocates that will simply result in delay in finalising judgments – and probably delay in other cases. Because advocates’ working week just can’t absorb this. As my anonymous mate says ‘it’ll be like herding cats’. Yeah, like herding slightly wild eyed over tired cats.

A subsidiary point is this (sorry, I just can’t help but notice)… if there are going to be lots more judgments in written form then we might reasonably hope that there would also be a few more judgments from these cases published. I won’t hold my breath on that one, because again the process of anonymisation (certainly if it is not built in to a judgment when delivered, or is not set out in instructions tot he transcriber at the start of the recording) can add a substantial time cost. One hopes that the mythical Anonymisation Unit will be sighted emerging from the lake soon.

4 thoughts on “The trans debate (no, not that one)

  1. Prudent LAs will obtain a transcript. From whence cometh the court’s power to order this?

  2. Disagree on the cost. The judgment says LA to “obtain” the transcript which is the administrative task of ordering etc. Judgment is silent on issue of costs. Have already had order made splitting costs of transcript between all parties.

  3. If he is keen for this to happen (and I’m not saying they are not needed), why not make it a practice direction that all judges have to give a written judgment when they make a placement order (or judgements are to be provided at public expense when placement orders are made).

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