The President’s ire

Sir James Munby is not a man who is afraid to speak his mind, and that, surely, is no bad thing for the President of the Family Division. He will ‘fight the corner’ of the family justice system and those who have to use it, for example those who no longer have the benefit of legal aid and cannot afford to pay for representation. However, sometimes his ire is directed inwards, at those who work within the system.

Such was the situation in S (A Child) (No 2), his second judgment in the case, specifically handed down in order to highlight “various instances of poor practice which need to be identified with a view to ensuring, so far as possible, that they do not recur”.

The case concerned care proceedings in relation to a little boy, S, who was born on 3 March 2013. The proceedings were issued in September 2013 but a final care order was not made until June 2014. It was also ordered that S should be placed for adoption. S’s father sought to appeal against these orders and in August 2014 the court allowed the appeal. The care and placement orders were set aside and a retrial was ordered.

The retrial was heard by the President in November 2014. He decided that S’s welfare demanded that he should grant the local authority the care and placement orders that it sought.

The President announced his decision on 25 November, but his judgment was not handed down until 6 March. On the same day, he handed down the second judgment, which covered three instances of ‘poor practice’ on the part of the professionals involved in the case.

The first targets of his ire were the father’s solicitors and the local authority, for their handling of the appeal. The father’s solicitors wrote to the local authority informing it of the father’s intention to appeal and requesting confirmation that it would not place S for adoption prior to the conclusion of the appeal. The local authority did not reply and the letter appears to have been forgotten or mislaid by the local authority, which decided to proceed with the adoption, without notifying the father. The situation, said the President, could have been avoided “if only the solicitors had ‘chased’ the local authority for an answer to their letter … and, more especially, if the local authority’s legal department had checked the position with the father’s solicitors”.

Matters then went from bad to worse, as S was placed with the adopters before the father’s appeal was heard. As I have said above, the father’s appeal was successful, but the adopters were not told of this straight away, as they were away on holiday. Needless to say, when they were told they were extremely distraught, which led the President to comment:

“I am not surprised. No doubt the initial decision not to tell the adopters what was going on was taken with the best of motives, even if the thinking which underlay it was naïve and fraught with problems. But the all too foreseeable consequence was that the local authority was gradually enmeshed in a series of dealings with the adopters which passed imperceptibly from non-disclosure to something more serious. Complete frankness was surely called for from the outset.”

The final instance of poor practice was on the part of the local authority. Earlier in the proceedings it had been directed to identify what practical support the father needed if he were to care for S, and what support it could provide from its own resources, or with any external supports that could be provided. In response, all the local authority did was to say that it needed to discuss the matter with another authority. As the President said, “You do not identify what is needed by saying that you are going to discuss it with someone.” Thankfully, this failure by the local authority to comply with the court’s order did not impact upon the outcome of the case.

This judgment obviously deals with very specific instances of poor practice, but it will no doubt also serve as a reminder of the very high standards expected of those who work within the family justice system.

The judgment can be found here.