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View from the foot of the Tower: Just the facts, ma’am
Sep 29, 2018, 19:04 PM
family law, Interim care order, Appeal, Facts and reasons, Expert evidence
The High Court has ruled, in the case of Re NL (Appeal: Interim Care Report: Facts and Reasons)  EWHC 270 (Fam),  2 FLR (forthcoming) that the practice of parties (sometimes all of them, sometimes the Local Authority) drafting Facts and Reason
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The High Court has ruled, in the case of Re NL (Appeal: Interim Care Report: Facts and Reasons)  EWHC 270 (Fam),  2 FLR (forthcoming) that the practice of parties (sometimes all of them, sometimes the Local Authority) drafting Facts and Reasons for the Magistrates in family cases for agreed orders or 'not opposed but not consented to orders' must stop.
This practice wasn't unknown to HMCS prior to this case, as you can readily tell by looking at how many of the pro-forma Facts and Reasons forms contain a section specifically addressing whether the reasons had been prepared in draft by another party. There is even a suggestion in the Children Act Advisory Committee guidance that the Court is entitled to adopt reasons drafted by the parties in uncontested cases - if this was intended to be limited only to private law cases the intention is not as plain as one would wish.
You might think that the wording used by Pauffley J in Re NL was unequivocal: 'Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.'
But I am already aware that there are parts of the country where it has been claimed that Re NL turned very much on its facts and that it would be okay for the parties to sit down and draft Facts and Reasons together as a collaborative process, or to partially draft the Facts and Reasons, with certain portions left to be completed by the Magistrates themselves.
I understand that the Family Division Liaison Judges asked the President about this specifically in February, and the message (if it needed to be clarified) was clarified to be that there are NO circumstances in which the parties should even be contributing to the Facts and Reasons.
The Magistrates, with the assistance of the legal advisor (once a decision has been made) are experienced in producing Facts and Reasons in fully contested cases, so the skills are within their grasp. In fact, when you think about it, the hardest decision to be taken in most care cases - can the child stay at home in the interim or not, is generally one that falls to be determined by Magistrates.
There should not need to be any new training or guidance (although some specific guidance in the model Facts and Reasons as to the need for a Re B-S exercise would not go amiss - at present, I provide the Family Proceedings Court with Re HA (Capacity to Change)  EWHC 3634 (Fam),  2 FLR (forthcoming) as the closest thing to an exemplar Re B-S compliant judgment that is available).
Where there IS going to be an impact is on time, and it was time that was the major factor in this practice springing up. It is not uncommon in practice for the process of giving Facts and Reasons on an agreed, or ‘not opposed' order to take 2 hours, whereas the parties were usually able to agree and write them within fifteen minutes. That is all time that is going to need to be found somewhere.
The advocates will need to be paid for that waiting time, it may be less possible for the court to deal with two such cases in a day, which means either additional sitting days or more likely a longer wait for a hearing. And of course the parties have to wait as well. That can be a bigger problem than the financial and resource considerations.
Sometimes ... wait a moment. Close the door, draw the curtains. I will speak in a whisper. Of course the court ISN'T a rubber stamp and must form its own conclusions of what orders are in the best interests of the child , regardless of any consensus reached by the parties. Of course that's right. But, sometimes, it is helpful if the court behaves a little bit like a rubber stamp. It's not a very popular opinion, you don't hear it spoken aloud very often, but sometimes it is true.
There are occasions when the advocates work very hard outside of court to get an agreement, to get comprises and preambles and details which all precariously balance together to reach a point where everyone can leave court if not happy, then not unhappy. Such a precarious arrangement can be upset by the process of waiting for 2 hours for the court to give their blessing by way of Facts and Reasons. Not everyone can sit patiently for 2 hours or more after they've made heart-breaking decisions. Sometimes, having reached that agreement, you really need to get the court's blessing and get the parties away from court before tempers flare or second thoughts come into play.
Agreements can also be upset by a word out of place, by well-meaning remarks in the Facts and Reasons that are made without knowing the full context of what has gone on outside the court-room to get the parties to this point of equilibrium.
Perhaps the burden we place on the FPC is too strong. In a situation like that, before a circuit judge, where a long and detailed order and framework is submitted and all parties agree the order or don't oppose it, of course the judge won't make an order or approve directions that are wrong, but nor will they give a lengthy judgment where it isn't needed.
Very often, what you get is a succinct judgment, perhaps 5 minutes or so. Occasionally it can even be ‘I'm satisfied that the threshold is met in accordance with the draft document, I've seen the welfare checklist, I'm satisfied that these orders are right for this child and I make the order'. Sometimes what you get is ‘This all seems very sensible, I make those orders'.
(For clarity, I am not suggesting that this is a bad thing - in a time of finite resources you have to make the best use of them, and that is in giving judgments when there is a live issue to be determined or where the case requires it. Is it a good use of judicial time to deliver detailed judgments in cases where a sensible agreement has been reached?)
The Family Proceedings Court aren't given that luxury. If they are making an order, even if it is by consent or not opposed, they have to fill in their entire form and give Facts and Reasons. We place the same burden on them in terms of making decisions - they are allowed to make orders sanctioning the removal of a child, about the level of contact, about adoption; but they don't have the discretion that a circuit judge has about not having to give a detailed judgment if the orders sought aren't contested.
Well, that is how it has worked in practice. When one looks at the legal requirements that relate to Facts and Reasons, there may be some scope for giving shorter reasons in a case which is agreed. (There are good public policy reasons for giving full reasons in a case which is not agreed but not opposed.)
The Magistrates are obliged to give reasons for their decision as a result of r 27.2 of the Family Procedure Rules 2010 - those reasons must be in writing. When making an order or refusing an application r 27.2, the decision will be announced and accompanied by: (a) the reasons for that decision; or (b) a short explanation of that decision.
Might the ‘short explanation' if given in writing, be along the lines of the sort of succinct judgment one would get in the county court if agreement has been reached?
If the parties were to agree a list of questions / issues that the court should address before an order can properly be made, in an agreed case, what would the harm be in the Reasons being the court's succinct answers to those questions?
The Magistrates have been given guidance by the Children Act Advisory Committee on the formulation of Facts and Reasons, but that dates back to 1997.
The operation of the Children Act 1989 has moved on quite considerably in that time - but this paragraph might be of interest:
‘Facts and reasons should be relevant to the issues in the case. Whilst they should contain sufficient detail to justify the decision reached, ‘reasons for reasons sake' should be avoided.'
Perhaps it is time to revisit whether we still require full and detailed reasons for agreed orders, or whether a two-tier system might remedy the ills of the parties being part of the decision-making process without ending up with a time-consuming process that has little benefit. The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.