Adherence to the Public Law Outline in London – issues for family lawyers
Rebecca Davies discusses the Family Presiding Judge for London, Mr Justice MacDonald’s new practice note and strategy aimed at reducing the huge backlog and delay in the London family courts and how family lawyers may be affected.
In summary Mr Justice MacDonald’s practice note re-emphasises:
- the Public Law Outline and assessments therein
- the necessity of any assessments within proceedings, and
- the need for strict timetabling.
With respect to private law, there is little new, save that Mr Justice MacDonald has expressed a wish to introduce the Pathfinder courts to the London area.
As a barrister who appears in family courts all over London, who has seen the failure (or perhaps more properly, judicial reluctance or caution) to be robust in applying such guidance, I highlight some key areas where questions remain about its implementation.
Non-engagement in Public Law Outline
Anyone working in public children’s law will be all too familiar with the submission “it will be different now we are in proceedings”. This is undoubtedly true in some cases.
However, when parents do not engage in assessments during PLO, how is the court to treat this? We are told in the latest guidance that time is not a reason in and of itself for fresh assessment.
How will the court treat lack of assessment when the reason is lack of engagement? This issue bleeds into the next query listed below.
Implementation of initial directions
All too often extensions are sought for parents’ initial evidence, even if initial hearings are not listed on an urgent basis.
If initial statements are not produced evidencing the need for further assessment, how is the court to treat this?
Will the court be required to undertake an inquiry as to reasons? Lack of legal resources is barely accepted as a reason for non or delayed compliance for local authorities, so how should this play out when it comes to parents’ solicitors?
If parents have been served with letters containing proper warnings but do not instruct solicitors, how should this impact on their ability to present their case, or indeed on the preliminary assessment of their case if they have not done so?
What can or should letters of issue from a local authority contain, so that they are informative without appearing threatening?
All these questions require further thought and clarification to ensure the success of the new strategy. Much of this relies on judicial robustness, dealt with further below.
Expert identification
The re-emphasis on the PLO process places further importance on the identification of properly qualified and instructed experts. The backlash from the legal profession at the manner (and in some cases, substance) of the implementation of the SIHIS pilot scheme indicates the worry amongst family lawyers about one party having at worst a monopoly on expert identification, and at best there being a narrowing of the options.
If the PLO process works correctly, parents’ solicitors should have a say in appointment of experts. But what happens in the event of dispute, without a neutral body such as the court to determine this?
If a local authority appoints a suitably qualified person is that the end of the matter? What if there are linguistic, cultural, or gender-based factors involved? It may be that these are matters for judges to grapple with at case management hearings, however their willingness and ability to do so will depend on the final 3 issues below.
Necessity of evidence on international placements
One issue mentioned in the strategy is the need to seek evidence on international placements at an early stage.
However, there is an inherent tension between this guidance and the necessity of expert evidence. When it is not known if an alternative carer will pass an assessment, nor whether having seen all the evidence they wish to care for the child, nor when assessment is ongoing of parents if there have been issues with the PLO, how can it be said that international legal opinions are necessary to proceedings?
Further, when legal aid will not fund this, local authorities may question why they should bear the burden of funding such advice at case management stage where it may be far from clear whether such evidence is necessary.
Much of this depends on early identification of alternative carers. A bank of information on placement in different countries, regularly updated, would be an ideal solution to many issues which would arise in this regard.
The family court encounters certain countries more often than others, and undoubtedly Brexit has made this more complicated. Even so, a general resource upon which the family court could rely would benefit not only London courts (who by their very nature and location encounter these issues more frequently than other areas) but family courts all over the country.
‘Nothing else will do’
In L & Ors (Children : care proceedings) [2017] EWHC 2081 (Fam) Munby J (as he then was) emphasised:
- the need to identify alternative carers at an early stage of proceedings, and
- the principle that they may not be considered if they either come forward or challenge the negative assessments .
Despite seven years having elapsed, it is extremely common for assessments to be granted by the court, or for local authorities to carry out assessments for fear of being accused of delaying proceedings further down the line.
Much of this comes from the emphasis on the phrase ‘nothing else will do’. Going forward, this phrase will need to be interpreted in accordance with all other case law and guidance to enable the effective implementation of this new strategy.
Advocates meeting
Late receipt of papers and briefs, late making of properly constituted applications, or a lack of instructions, frequently hinders the effectiveness of advocates meetings.
Everybody working in the family justice system is busy, and it is likely that an initial push and investment will be required to essentially ‘get ahead’. Even then, clients may be difficult to contact given the issues faced by many of those individuals (particularly but not exclusively in public law proceedings) who access the family justice system.
How the court intends to treat these instances going forward, and whether it will be more ready to employ costs orders or unless orders more regularly, remains to be seen.
Listing pressure
The new strategy envisages longer issues resolution hearings, but obtaining one of these is frequently an uphill struggle.
While time is not in and of itself a reason for re-assessment of parents in public law proceedings, there are often extremely important developments in the lives of children or parents which may lead to evidence relevant to a decision being out-of-date.
Given the time between the issues resolution hearing and final hearing, CAFCASS officers retire, or social workers move on, sometimes necessitating witness summons or additional witnesses. Again, another initial push and investment is likely to be required to essentially ‘catch up’ to enable effective rollout of the new strategy.
Another issue with listing is advocate availability. Consistency of advocate, at least between IRH and final hearing, will greatly aide the success of the strategy.
However, time between hearings, as well as uncertainty as to dates of final hearing where these are listed late, mean that this is rarely adhered to. Clients and solicitors will need to carefully consider this, although it is unclear how it can be enforced.
Lengthier issues resolution hearings, and actually using them for their purpose, cannot help but reduce delay. There should be further consideration of deciding issues at IRH if there is evidence before the court or if the matter can be dealt with upon submissions, and better actual identification of issues which will be tested under evidence.
For example, if hair strand testing demonstrates excessive drug and/or alcohol use, what is the parents’ case?
- Are the results wrong?
- Are the results correct but do not impact on their parenting to the degree that their child should be removed?
- Are the results correct and impact their parenting to the degree that their child should be removed but they are committed to reducing this?
- Or despite the results and impact on parenting, should their child come home?
Each of these approaches will result in a different level and type of oral and written evidence, and proper identification of these by advocates from all sides should be expected going forward.
If this is not done, a judge should ask them to leave the courtroom to do this.
Funding
While the guidance does not touch on this, the lack of proper legal aid (and in many cases from local authorities) for conference, advice, and perusal of papers by trial counsel at an early stage is likely to impact on the willingness, and fundamentally ability, of advocates to advise early, identify issues and evidence, and work together with instructing solicitors as privately paying litigants experience.
Also the funding level impacts on the workload of those vitally important solicitors running these cases daily. This is a conversation for another day, but being asked to do more with less may be a legitimate concern of those working in this area.
Judicial robustness
As noted throughout, implementation will depend heavily on the judiciary. Lawyers have to act on client instruction even when this goes against the guidance. They will of course need to be aware of the case law and recent developments and draw it to the court’s attention. They need to know their client’s case and be able to, for example, be able to set out issues at IRH stage, but the real driving force will come from the decision makers.
In the last few weeks I have encountered a judge refusing to find threshold at IRH on the mother’s submission that it might be made simpler, despite her being deemed to accept it some 11 months ago and had not even now sought to put in a response, and despite the father agreeing it.
Anecdotally there are cases of lengthy hearings being put in diaries when, on a proper construction of challengeable issues, they are much less. If a parent does not attend a hearing and a warning has been given that final orders may be made, how should a judge approach this?
Naturally it will depend on the circumstances and application of case law and application of the Family Procedure Rules, but in my experience there is still reluctance to make these orders, even with provision for applications to restore if some new evidence comes to light demonstrating a legitimate reason for non-attendance.
Concluding thoughts
All of this can make for somewhat bleak reading. Those working in the system may be forgiven for thinking these latest initiatives are simply a repeat of previous overtures to better address the needs of families and children.
However, at least from above, the sense of purpose and urgency, along with (albeit limited) additional funding indicates a real commitment to the purpose. This has been supported by recent judicial overtones, for example Mr Justice MacDonald in LB Enfield vs E (Unconscionable Delay) [2024] EWFC 183.
But something may be different this time round. Through collective effort a difference can be made which will not only reduce pressure on family lawyers, but most importantly improve the lives of families, particularly children’s, who are being severely let down by the current state of affairs.
Rebecca Davies is a barrister at Field Court Chambers.
