We live in dangerous times so far as family court proceedings are concerned. Prior to April 2013 it was the case that everyone, irrespective of their means, could obtain professional advocacy if they were involved in family court proceedings. Sadly, that situation no longer pertains, after the government saw fit to abolish legal aid for almost all private law family matters. This, as we shall see, has not only affected the litigants themselves who have been left to cope without proper advice and representation, but has also affected the very administration of justice, as the lack of good advocacy makes it difficult or even impossible for courts to reach correct conclusions.
This is, of course, a point that has been made previously, including by myself. However, it bears repetition, as the recently reported case Re C, D & E (Children) confirms.
As Mr Justice Baker states at the beginning of his judgment (handed down last May) Re C, D & E (Children) was a very sad case, illustrating the terrible consequences of sexual abuse within a family and how it affects the lives of succeeding generations. The case concerned care proceedings relating to two children then aged nine and four. The local authority were concerned that the older child had exhibited sexually inappropriate behaviour and when they investigated they found that the father of the younger child had, in 1990 when he was twelve years old, been cautioned for sexual offences involving his younger brother. At the request of social services the father moved out of the family home and was directed not to have any unsupervised contact with either of the children.
The father then started private law proceedings seeking contact with the children. Concerned that the mother was unable to protect the children from the father, the local authority then started care proceedings. In their evidence the local authority relied, amongst other things, upon the fact that the father had accepted the caution in 1990. After legal discussion, it was conceded by the local authority that no reliance could or should be placed on the caution itself, but rather on the admissions allegedly made by the father at or around the time the caution was administered. Accordingly, it was directed that the matter be listed for a fact-finding hearing, limited to the findings sought by the local authority that the father was responsible for sexual assaults upon his brother and/or sister in or around 1990, and the truth of the admissions that he had made in respect of the same. Mr Justice Baker’s judgment related to that fact-finding hearing.
I will not go into the details of the fact-finding, as set out in the judgment. Suffice to say that it involved an enormous amount of evidence (there were no fewer than 17 bundles of documents, much to the chagrin of Mr Justice Baker) and huge complexities, made considerably more difficult by the passage of time. It emerged that the father had grown up in a family where sexual abuse was a regular feature of the home, he had been a victim of physical and emotional abuse over a prolonged period of time, and probably sexual abuse as well.
Mr Justice Baker was satisfied that the father did say on several occasions words to the effect that he had abused his younger siblings but, having given the matter careful consideration, he found that there were grave difficulties in attaching significant weight to those statements. The reasons for this included the poor quality of the evidence, the age and the circumstances of the father when he made the statements. Accordingly, on balance he found that the local authority had not proved that the father had committed acts of sexual abuse upon his younger siblings.
Happily, after the hearing the father co-operated with a detailed psychological and risk assessment by a Consultant Psychologist, who was asked to identify any risk of sexual abuse or domestic violence that he may now pose. The report was favourable and the local authority sought permission to withdraw the care proceedings. The father has resumed unsupervised visiting and staying contact with his children.
Mr Justice Baker concluded his judgment with some words about the value to the court of professional advocates. He said:
“…this case has demonstrated yet again the importance of professional advocacy in family proceedings. It would have been impossible for this case to have been concluded without advocates, as might well have been the case if they had remained private law proceedings. It was only through hearing the case presented and argued professionally by experienced specialist counsel that I was able to reach my conclusion.”
Obviously, in care cases parents are still entitled to legal aid. However, as indicated, this is not the situation in private law family matters, and it may well have been the case that the parents would not have been able to afford representation had the local authority not issued the care proceedings. Had the issue of the 1990 caution arisen in private law proceedings without either party being represented then the court would have been left with an absolutely impossible task in ascertaining the true facts. In those circumstances justice would almost certainly not have been done.
The full report of Re C, D & E (Children) can be read here.