As long ago as April a number of lawyers began asking questions to clarify public criticisms made by John Hemming about a case dealt with in the family court. This week John Hemming has published a blog post which appears to be an(other) attempt to answer some of our questions, although unfortunately it doesn’t link to the posts in which we set out those questions and his hitherto unsatisfactory replies. Sadly, it also doesn’t fully answer the questions we posed, or at any rate it raises a number of others.

Shaggy Dog by Psyberartist on Flickr (creative commons licence) – thanks!

It’s been a long, meandering journey to get to this point, and you can read about that in full here : A Simple Question, and subsequently here : The Shaggy Dog Story continues.

But for those without the energy to (re-)read all that, the backstory in brief is this :

A piece that ran in the Sunday Telegraph in April suggested a child had been taken into care after being locked in her bedroom by her grandparents. John Hemming was quoted complaining that the grandparents had not had any explanation from the judge as to why the order had been made. It was unacceptable, he said, for the judge not to give reasons. It was suggested that Justice For Families, an organization associated with John Hemming, had launched an appeal.

In the ensuing discussions on twitter and by email it became painfully clear that John Hemming didn’t really have a grip on the case, hadn’t seen any papers and hadn’t met the grandparents when he gave his quote. Several within and beyond The Transparency Project questioned why then had he felt it appropriate to make a public statement at all?

So where are we now?

In John Hemming’s 15 Sept blog post he tells us that the court was informed by barristers (presumably including the barrister representing them) that the grandparents agreed the threshold and consented to the making of a care order. But, complains John Hemming, the court wasn’t told that the grandparents consented to the care plan.

The threshold is the legal gateway that allows the court to consider making a care order – if the court is satisfied a child has suffered significant harm or was at risk of it as a result of the parenting given by the parents (in this case the grandparents) the court can (but does not have to) make a care order. Here we are told that the grandparents agreed the child had either suffered or was at risk of suffering significant harm (we deal later with the suggestion that this wasn’t actually their position – this is apparently what the court was told), so the door was open for the court to make a care order if it felt it necessary and appropriate.

So, the (court was told that the) grandparents agreed the door was open to making a care order. And the court was also told that the grandparents agreed that a care order should be made. What then is the significance of the court not being told they specifically agreed the care plan? In short, not a lot. The court does have to consider the care plan before making a care order, but here it would have been clear to everyone that the plan was foster care, and the giving of consent to the making of a care order was one and the same as consenting to that plan being put in place (We can say it would have been clear because John Hemming tells us this is a final hearing and the grandparents were parties. As they held a special guardianship order they would have been entitled to legal aid and were represented. They will have been served with the care plan and final evidence in advance of the hearing at which they apparently gave their consent and had an opportunity to query any confusion with their lawyers before or at the latest at the hearing). A judge has no power to say “you can have a care order but only if you do X with it or only if you do Y with it”. She has to choose between a care order on the basis of the plan presented – or no care order, if that is safe. Here, as far as the judge was concerned there was no dispute that a care order should be made, and the judge appears to have made the order without opposition. Although it would have been preferable for brief reasons to have been given (we only have Hemming’s word for it that they weren’t) it is permissible to make a care order on this basis. Certainly if one of the parties were unhappy with something in the plan we would expect them to withhold their consent to the making of the order and the court would have to resolve the matter – and would inevitably give a judgment. That isn’t what happened here. It is worth noting that it is possible that a shortened explanation of the legal reasons for making the order is set out in the order itself, but we haven’t seen that. For an example of that see here, the order published in the muslim foster carer case, where the context and the gist of the legal reasons for the decision to place the child with the grandmother is summarised (see pa 17 in particular). This is typical and we would expect similar background information about the parties positions and the decision made to be recorded in the order here.

Was the court misled about the grandparents’ position?

Hemming says that the grandparents accepted that the child had been locked in her room but did not accept that she was left in the dark (There is some confusing detail offered about lightbulbs) and therefore that they didn’t accept the threshold was crossed (because, says Mr Hemming, locking the room was not a failure in parenting giving rise to significant harm).

Hemming also tells us that the grandparents are both “quite clear that they either did not agree to what was proposed to them or did not understand the consequences.” It is somewhat surprising that if they are so clear they cannot choose between these two mutually exclusive alternatives – they must know which it is (unless perhaps they have some unmentioned communication or learning difficulty).

All we know is that the grandparents appear now to be saying to John Hemming that what the court was told was not their true position. We don’t know why the grandmother didn’t come into court (it is said she was in the building) or why, if the grandfather couldn’t hear, arrangements weren’t made to cater for that, as they routinely are. There is a suggestion that the grandparents’ non-attendance was not “deliberate” but we don’t really know what that means. And we don’t have any account from the barrister(s) said to have made careless or false submissions to the court.

We can’t judge whether the account apparently now given is accurate, a result of wishful thinking following a change of heart, or a result of misunderstanding. If taken at face value, these are implicitly very serious criticisms about the conduct of the barrister in question, which we would expect should have been raised as a professional conduct complaint – but there is no indication that this has happened. Where such a serious criticism is made of a barrister, we would expect him/her to hold and produce contemporaneous notes of discussions outside court and their instructions, which would probably give a clear answer to the question. If these grandparents were represented by a barrister,he/she will have had a written brief before the hearing, and discussions with them before going into court about what their position was and whether they wanted to come in or not – and the written records of that which will almost certainly exist would be very illuminating. However, the barrister would probably be unable to publicly respond to this veiled criticism of them due to their obligations of confidentiality and the rules around legal professional privilege.

John Hemming says “There is no record of what was said between the grandparents and their legal representatives.” But we think this is probably a reference to what is and is not on the transcript and what Hemming has access to, rather than necessarily an indication there is no record at all.

Was Hemming’s original criticism justified?

On the basis of the current information, no.

Hemming was criticising the judge for not giving reasons. It is now absolutely clear that the judge was told everyone agreed and so, regardless of whether or not that was in fact the case, it was permissible for the judge to make the order without giving a full judgment. The suggestion that the judge was obliged to explain her reasons to parties who were unanimously asking her to make the order is wrong. The fact that people sometimes change their minds is a good reason for a judge to exercise caution and to spell out reasons even where there is at the time no apparent need, but it isn’t a requirement in law.

Although it is not acknowledged, it appears that the focus of Hemming’s criticism on behalf of the grandparents has shifted onto the barrister who has allegedly either failed to take proper instructions / to properly advise and / or who has misled the court about the instructions given. This is an entirely different issue than the one originally raised and demonstrates how poorly understood this case was when John Hemming chose to make a public statement directed at the wrong target. His approach thus far and the apparent ease with which he makes grave accusations against professionals without a proper understanding of the facts does not lend credibility to his recently identified complaint about the barrister.

There is no news on the appeal that Hemming said in April had been launched on behalf of the grandparents and we can still find no reference to the case on BAILII.

Feature Pic : John Hemming courtesy of himself on Flickr (Creative commons – thanks!)