This week, two family court judgments were published that caught my eye, and sparked some discussion on twitter. This is just a brief post, not so much about the substance of the cases, but about the transparency aspects of them.
The first was a judgment from District Judge Bailey and concerned a case involving allegations of parental alienation : B & C (Children : Child Arrangements Order) [2018] EWFC B100 (18 December 2018).
The second was a judgment of Her Honour Judge Lazarus and involved some pretty shoddy practice by a local authority around its decision making, analysis and applications for placement orders concerning a 4 year old child : A (A Child : Flawed Placement Application) [2020] EWFC B2 (10 January 2020).
The District Judge’s judgment
The most notable thing about this judgment is that it is published at all. Each year you can count on one hand the number of family court judgments published by district judges. There are a number of reasons for that no doubt, including the nature of the work, the volume of the work, the fact that district judges are relatively low down the pecking order and often feel that their judgments are of no interest to anyone or that they ‘ought not’ to publish (I know this because several have told me exactly this), and also because they don’t have to – the 2014 Guidance that encouraged judges to publish certain types of judgment explicitly only applied to judges above the DJ rank.
And yet. There are a vast number of district judges dealing with a high volume of private law, public law and financial remedy work in the Family Court – both in terms of overall volume, and in terms of the volume each individual judge is expected to get through. Between them, District Judges probably deal with a large chunk of all private law work, and thus a good proportion of all fact finding hearings, as well as handling many parental alienation cases (Magistrates also deal with a significant volume of family court work).
If you want to see what the Family Court looks like, if you want a picture of what it’s like at the coal face, of what a ‘typical’ case looks like, of what sorts of issues are cropping up in the Family Court and of how well or badly they are being dealt with – look to the District Bench.
Even if all circuit judges stuck to the 2014 guidance and published their judgments when they were supposed to, it would not give us a real overview of the work of the family court and its performance. It wouldn’t tell us how widespread the problems highlighted in the Tolson judgment really are.
What is interesting about this judgment is that it contains some quite polite but ultimately serious criticism of a psychological expert, and yet does not name them. The judgment doesn’t give us the reasons for that decision and so we can only speculate – though there is no obvious reason why the general rule that experts are named should have been bucked here. What we do know is that district judges are not used to publishing judgments and that this issue, if not raised by advocates, may not have been at the top of the priority list for the judge in question.
Frankly, props to this district judge for publishing at all given all the disincentives to doing so. If publishing at district judge level were more commonplace, we should expect issues like the naming of experts to be dealt with more rigorously, but it seems churlish to criticise when we might not have had a judgment to complain about at all in 99% of cases.
Parental alienation is a hot topic at present, with a recent flurry of interest and comment on it in light of a recently published article by Dr Adrienne Barnett of Brunel University and a subsequent Independent story.
As to the wider issues around the naming (or not) of experts, this is one issue that the President’s Working Party on Experts is considering. Their consultation closes today and one of the recommendations is that judges should consider the purpose of criticising experts ‘and the effect that such will have upon the expert in question and experts more generally’. These issues arise in a context where it can sometime be a real challenge to find a decent expert who can report in good time, and the suggestion is some are reluctant to do the work for fear of criticism, and where a good proportion of those surveyed were reporting worries about unfair criticism by the media. The Working Party paper rightly draws a distinction between constructive criticism and unfair criticism, and highlights the perception that this may arise as secondary to a misunderstanding due to the complexity of a particular case. To an extent, the answer to this must be clearer judgments which the press and public can understand, which should minimise if not remove the risk of misreporting.
The Circuit Judge’s judgment
Her Honour Judge Lazarus has a history of publishing judgments. This one is a devastating critique of one particular local authority, for messing up in each and every aspect of its work – and the criticisms span various departments, including legal, and rise up the tiers of hierarchy to the top of the organisation.
The interesting thing about this judgment is the decision not to name individuals at the local authority (though the local authority itself is named). Here the judge does give detailed and persuasive reasons for identifying the LA itself but not naming individuals (she seems to have given thought to the purpose and likely impact of identification as the Working Party suggests is important in the case of experts). This was an institutional failure and there are systemic issues. The judge doesn’t shy away from censure of the local authority – what she says is pretty stinging, and her comments include the possibility (but no more) that the LA may have committed a criminal offence. She also made a costs order against them.
HHJ Lazarus’ conclusion was in essence that naming any individual or small group of individuals would unfairly focus criticism or blame on those individuals when really the problem was bigger, wider and deeper. And as the judge makes clear, there were some issues which she did not explore or get to the bottom of and which were for others to deal with (such as the issue of whether and how a criminal offence might have been committed) – meaning it was in any event difficult to precisely ‘pin’ a particular failing on any specific individual. However, the judge did conclude that the LA really should be identified in view of the gravity of their failures. Alongside her criticism, HHJ Lazarus recorded the steps that have been taken as a result of the issues arising in this case. She says :
In the circumstances, and bearing in mind the overriding objective, although it can quite properly be said that this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days, I am satisfied that it is sufficient censure to point this out in the context of the criticisms of this detailed judgment, to take into account the positive steps that are anticipated will prevent such avoidable errors in future, and to require the local authority to meet the Respondents’ costs of one day of the November hearing.
As for her decision to protect the identity of individual social workers, she says
The local authority, quite properly and as required by case law, is identified. However, the problems appear to be systemic and wide-ranging. The identified problems touch each element of this local authority that has become involved in this case: social work, supervision, management, decision-making, legal advice, internal training, standards and checking systems, and ranging from social worker to lawyer to Director. Accordingly, it would be misleading and would attach too narrow a focus to name any single individual.
By way of comparison, another recently published judgment from a Circuit Judge in Middlesbrough delivered very severe criticism of an expert and the LA for their involvement in a case where siblings were separated when they ought not to have been (see our post about that case here). In that case too the Judge, Her Honour Judge Matthews, gave reasons for her decisions as to who to identify – she anonymised the LA and the expert, partly to be sure that there was no risk of jigsaw ID, but also saying :
…the motivation behind publication is not only transparency but education and an incentive to promote good practice. This hearing was never intended to be a witch hunt, rather an enquiry into how the case came to fall into such error and how to ensure that such events do not reoccur. I am well aware that Local Authority employees have been under a huge amount of pressure as a result of the very significant increase in Public Law applications, both nationally and particularly in this area. It is imperative that they do not feel demotivated and attacked by the court. This cautionary tale is intended to positively motivate them to better practice in the future. We should all be proud of the work we do in attempting to make children’s lives better and keep them safe.
I am satisfied that the Local Authority will respond to the criticisms in this judgment, having had an opportunity to discuss steps which are being taken to improve social work practice within the Authority. It is vital that what has happened here is not replicated and further children damaged by incompetent and ill-informed practice.
I have made it clear to all Authorities in this DFJ area and to the local adoption service that the judgment of the court is the starting point and guide for care planning after the making of Care Orders or Care and Placement Orders. The judgment of the court, amended care plan and final court order must always be provided to the adoption agency after a Care and Placement Order is made.
However, perplexingly, having said in her judgment that she would consider naming the expert, subject to any submissions they might make on the issue, the judgment has the expert anonymised with no rationale actually given. That particular loose end might be tied up in a subsequent judgment perhaps, but the public might legitimately query how it is that the identity of experts who have been heavily criticised in this and the District Judge’s judgment can be justifiably kept secret from not only the public and press, but also other judges and the professionals who might unknowingly instruct them on behalf of their clients in future.
So, two judgments that it was important to publish, but for different reasons. And a detour into a third case too!
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Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)