John Hemming on public family law
I founded the Justice For Families campaign in 2006 as a result of finding many problems in the operation of public family law.
There are growing numbers of litigants in person (LIP), particularly in family law, and these are often viewed as a bit of a nuisance.
There are a number of reasons for the growth in LIP. In the private sphere the issue of cost is an important point. Parents (usually fathers) end up unable to fund their own legal advisors and in order to proceed are required to act as LIPs.
The area of public family law is more complex. In theory, there is non-means tested legal aid available for parents. However, there are a number of difficulties. These generally involve the challenges of the Legal Services Commission (LSC).
The first difficulty is that of changing legal advisors. The LSC place considerable hurdles in front of any public family law party if they ask to change legal advisors. While it may be achievable to drop legal advisors and to act as LIP, it is nigh on impossible to change advisors. The costing of the case also makes it difficult for a second firm to be able to make a living out of picking up the pieces.
The second much more serious difficulty is that often the LSC will refuse to fund parties that wish to contest applications put forward by the local authority. It is a bit like having criminal legal aid in a criminal case refused for a defendant who wishes to plead not guilty. I have seen this in two cases. In both instances the parents concerned went LIP and won their cases.
Grandparents are frequently forced down the LIP route as they often don’t qualify for legal aid. They usually find it hard enough in the first instance to become parties to a case as they have to pass the hurdle of proving a sufficiently close relationship to the child.
One of the challenges of publicly funded litigation is that although there is sufficient funding to pay for the barrister who originally handled the case to assess the merit of an appeal, there is not sufficient funding to get a fresh set of eyes on the case.
I have two constituency criminal cases where the cases have been won on appeal, but the original barrister’s opinion was that the case could not be won. In the first instance, I assisted the family in issuing an LIP appeal and in the other I passed the case to the Criminal Cases Review Commission who handled the process.
There is, perhaps, some difficulty in asking the original barrister to explain what errors were made in the presentation of the case that gives rise to the possibility of an appeal as the barrister is being asked to review his or her own performance.
A further difficulty occurs for parties whose litigation capacity has been wrongly removed from them. I am aware of three cases where I believe that the Masterman-Lister v Brutton & Co test has been wrongly applied. One of those is the case of Rachel Pullen (RP). In this case I have assisted her and her brother to take the case through to the European Court of Human Rights (ECHR) in Strasbourg. Although she now has European Public Funding for the Strasbourg case it was impossible to get legal assistance in the other cases that she has been involved in.
And, finally, when it comes to taking a case to Strasbourg, litigants find further hurdles in making an application. The AIRE centre is one source of funded advice. However, they tend to be incredibly busy. We have, therefore, had to develop our own expertise in submitting applications to the European Court.
In the domestic courts it is possible to obtain a stay of execution whilst an appeal is considered. There is a similar mechanism under art 39 in the ECHR. However, we have not as yet managed to get this brought into action. The response from the court has normally been that they do not use art 39. We have with the RP case managed to obtain accelerated proceedings and an early statement of facts, but that is as far as we have gone.
Justice For Families has gradually developed a pattern by which we assist people. We, as with any other organisation, are limited as to the resources that we have. We generally only assist litigants with judicial reviews rather than cases in the court of first instance. That is because we have an objective of having the Strasbourg court review UK jurisprudence from the perspective of procedural protection under arts 3, 6 and 8 of the European Convention.
With public family law, the key tests are in domestic law whether a child is at a “risk of significant harm” or has suffered “significant harm”. If this threshold is met then action is left to the discretion of the judge.
To a considerable extent within European jurisprudence, arts 6 and 8 are considered jointly and are based around the question as to whether any intervention is “necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others.”
When a baby is being removed from a mother who has just given birth, art 3 is engaged from the perspective of “inhuman or degrading treatment”. This also applies when an 11-year-old has ADHD and is being forcibly dragged from his parents. Often the police take a sensible view in this situation and don’t try to drag out a boy who has barricaded himself in his bedroom. However, established European jurisprudence sees this as grudgingly acceptable when it is “inevitable”.
The third area in which Justice For Families is attempting to systematically challenge domestic procedure is under art 6. In particular, we are concerned about the resistance of the domestic courts in allowing second expert opinions.
In the matter of J (A Child)  EWCA Civ 1210, para 10, Wall LJ (now P) said:
‘I think it important to remember when one is looking either at the independent assessments by social workers or at applications under section 38(6) of the Act that one needs to be child focused. It is not a question of the mother’s right to have a further assessment, it is: would the assessment assist the judge in reaching a conclusion or the right conclusion in relation to the child in question? And on this particular issue it does seem to me that the judge was exercising a discretion and doing so appropriately on all the facts available to him. He thus reached a conclusion which I cannot for myself say in any way is plainly wrong, and since he has based himself on the latest authority on the point and considered the matter carefully, I, speaking for myself, cannot say either that he has erred in law and would dismiss the appeal in relation to a further social worker assessment.’
In essence, therefore, the mother concerned did not have the right to have a social worker assessment performed independently of that done by the local authority. It is only if the judge is not certain about the situation that a second opinion is possible.
The importance of second opinions has been clear for some time as is in the case Oldham MBC v GW & Ors  EWHC 136 (Fam).
In this case the mother concerned had an abortion to avoid a second set of family proceedings whilst the first set of proceedings were going on.
Para 2 makes a reasonable summation of the underlying matter and para 76 is important also.
2. At the outset of this judgment I must emphasise three very important and essential facts that I find and that are now agreed by all involved:
‘i) K has never been a victim of non accidental injury
ii) The care of K by his parents is and has always been exemplary
iii) K’s parents and relatives acted promptly and appropriately in obtaining medical treatment for him.
76. The force of those remarks is demonstrated by the facts of this case:
i) K was separated from his parents for 12 months;
ii) The parents bore an almost intolerable burden of being unjustly accused of inflicting serious injury on their infant son;
iii) The parents experienced the nightmare of what has transpired to be a false finding by a court. They lived for 12 months with the opprobrium and suspicion of friends and neighbours;
iv) On finding herself pregnant during the course of proceedings the mother decided to terminate that pregnancy, unable to face the inevitable separation from her baby that would have followed from such serious findings. I am told that just as she grieves the loss of those many crucial months with K she carries an additional loss of another potential life.’
Arguably, the evidence is that the treatment of the parents (and the baby after the first few months of life) engaged art 3, but the initial refusal of a second opinion was clearly not “inevitable”.
One of Justice For Families key campaign objectives is to ensure that the right to second opinion that should be available to operate in accordance with art 6 does apply within the domestic courts. Those European jurisdictions which have a court appointed expert also permit parties to obtain their own expert opinion to challenge the court appointed expert if necessary. The difference between UK jurisprudence and that on the continent is clear when comparing RP v The United Kingdom and X v Croatia:
‘At the hearing on 12 October 2004, the applicant objected to the above assessment and requested a new one. The second psychiatric assessment carried out by the Psychiatric Clinic of the Zagreb Medical School supported the first one.’
In England and Wales as soon as an expert has pronounced a party incapable of instructing a solicitor they are given no opportunity to challenge this.
As well as concentrating on appeals, Justice For Families has also concluded that we can only assist those litigants who are relatively self-starting. That is again because of the demands of case management.
The biggest challenge we have encountered is of obtaining copies of the documentation from the local authority and other parties. We have frequently found difficulties in getting court judgments. This has resulted in us adopting the strategy of issuing an appeal on the basis that no judgment has been given. Our experience is that this normally produces the judgment reasonably quickly.
It is, however, very difficult to review a case without all of the documentation. This is something that the local authority is aware of, which is why frequently the tactic of a paperwork ambush is used and paperwork is only provided either on the eve of the court hearing or even at the court hearing.
Without public funding there is also a challenge of finding the revenue to pay for the travel costs of litigants going to court. Many of the parties are dependent on public funding.
Justice For Families also deals with those that have left the UK because they believe that they are unlikely to receive a fair trial in the UK.
Normally the families leave before proceedings commence in the UK and are simply left alone in the foreign jurisdiction. We always encourage families to make contact with the authorities in the jurisdictions that they arrive in.
Other jurisdictions tend to have a higher threshold for state intervention in families, but also a lower number of children that die from abuse or neglect. I believe that these facts are largely due to the system concentrating on those children that are at most risk whereas our own child protection system tends to spend resources on situations where intervention is in fact damaging rather than of assistance.
It remains, however, that there is a growing pressure for parties to act as LIPs in courts in England and Wales. It would perhaps be worthwhile for the authorities to look further on how to ensure that this trend is managed appropriately rather than ignored.
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