Over the weekend I read an interview that Lord Judge, a former Lord Chief Justice, gave to The Times, in which he made some extraordinary remarks about the Lord Chancellor, Liz Truss and her failure after swearing an oath to do so, to protect senior judges from unwarranted and appalling attacks in the media. He hasn’t been alone.
I must say that when Ms Truss didn’t immediately respond to those attacks following the Brexit judgement, I too weighed in with my four pen’orth on Twitter. But when she ultimately put out a statement, that was, as you may recall, as weak as dish water, at that point I backed off.
“Enough” I thought then. Because really truly, there are other issues far more deserving of the attention of the Judiciary. So when Lady Hale too came in for some stick at an international law conference for daring to outline both sides arguments of the Brexit appeal she is due to hear shortly, and Lord Neuberger was urged to stand down because of his wife’s politics I more or less ignored it. I ignored the hypocrisy, too, coming from Lord Faulkner, who was, along with Tony Blair, the chief architect of the downgrade in status of the Lord Chancellor, as he gave interviews claiming that Liz Truss was not fit for purpose.
But reading Lord Judge’s interview this Saturday really took the biscuit for me. Let me explain.
This same weekend, a visitor to the blog left a message which read:
“My baby has been stolen forcefully from c section 12 hours old straight to foster care discharged under police pressure and corruptly stolen for forced adoption In 2015 I want my baby back.”
As it happened in 2015, the chances are the baby is now adopted and living with a new family, blissfully unaware of the ongoing pain of its birth mother. The case is closed. But how deeply was that case considered by the courts?
What struck me in particular about that message was the noticeable difficulty the mother has had in communicating to us what exactly happened. I think we can probably hazard a guess from what she wrote that she is not highly educated and finds it difficult to express herself in writing. Perhaps it’s the same for her when speaking too.
I remembered her comment, as I read a case today which came before Lord Justice Macfarlane in the Court of Appeal. Re A and Re B Children was an application for permission to appeal a High Court decision made by Mrs Justice Theis, an extremely experienced childcare Judge.
Her Ladyship had to deal with related families who faced their children going into care. Mr & Mrs A, along with Miss B (Mrs A’s daughter) all suffered from learning difficulties and were legally aided. The case against them all was grave. The two children of Mr & Mrs A were 15 and 13 while the three children of Miss B ranged from a few months to three years old. Sexual abuse in the family was at the heart of the case, including of Miss B when she was a child. Other parties in the family were also involved, and in a case consisting of some 64 bundles of papers, care orders were made by Her Ladyship and in the case of the three children of Miss B, an order was made for them to be placed for adoption.
Remarkably, so sensitive was the evidence that was heard that Her Ladyship ordered her findings, contained in a 90 page, 400 paragraph judgment, to remain in the possession of the solicitors for each of the parties. The contents could be orally communicated to them, but no copies were to be provided to the people involved.
Immediately afterwards, all three parties appealed the findings against them and the outcome for the children. Legal Aid however, simply stopped there. No one in the Bar pro bono unit was prepared to take on a case free of charge that involved dealing with 64 bundles of papers. So the people involved who had no access to the judgment itself and had to remember what it said were left to prepare grounds of appeal on their own.
How easy would you find it – even without a learning difficulty – to appeal a judgement you couldn’t access but do so on legal grounds the Court of Appeal could then consider?
Mr & Mrs A produced 200 pages of documents and 50 grounds of Appeal. They subsequently added a further 119 points. Lord Justice Macfarlane patiently went through it all and held that the findings of sexual abuse were so serious and their failure to protect so pervasive on the findings there was no evidence to demonstrate Her Ladyship was plainly wrong.
Miss B who had been herself abused, produced a document with over 30 points. The Local Authority did not deny that it had failed her, particularly when she was a child. However there were findings made by Her Ladyship that demonstrated Miss B would not be able to protect her children. Their welfare for the rest of their lives made adoption the desired outcome notwithstanding Miss B’s best intentions. Nothing in what Miss B put before the court gave rise to the argument that her Ladyship had been plainly wrong.
Permission to appeal the outcome was thus refused to all three involved. All five children have been removed from their homes and taken into care – the three youngest to begin completely new lives.
You may think the families have had a fair shot, they were legally aided, the Judge made a decision and that’s the end of it. From what I’ve read too there is nothing to suggest Her Ladyship was in any way plainly wrong and the children are best off as far away from the family as possible.
But let me ask you this question. What if it was you, not them, and without means when legal aid would previously have been available? You would have been facing the full weight of a local authority, who could and did pay for legal advice throughout. Even with your intellect not hindered by learning disability, you would have risked losing your children forever, on the basis of what you regarded strongly as a flawed judgement on flawed facts. Would you be happy – especially as you couldn’t even see a copy of the Judgement? I’m afraid I’m not one of those people who thinks lawyers and Judges always get it right. With the best will in the world, sometimes they don’t. Hence we have an appeals system where our finest Judges sit, with our finest lawyers appearing before them. In this case Lord Justice Macfarlane was doing it all himself. And the people whose lives have been irreparably changed were not legally represented.
The senior Judges in this country are rightly up in arms about their treatment by the Lord Chancellor. Yet there is so much wrong in our family justice system that respectfully doesn’t merit mention in the same breath. Yes there are serious constitutional issues that have been highlighted, but the Divisional Court will continue to sit, the Supreme Court will hear and hand down its Brexit decision. It is what is happening daily in the family courts (those that remain open) that in reality, is also truly, utterly appalling. Lack of legal aid, lack of access to the law, delays in accessing the courts, delays in hearing a case, inability to understand and take part in a case even when it’s literally in court and a child can be removed forever…I could go on and on. And on.
And throughout it all, the Judges have publicly stayed mute. Why? We were told they mustn’t get involved in politics as literal lifelines were being removed for the poorest and neediest in our society. They have seen too family lawyers at the coal face – the Bar and the High street solicitor – decimated by the end of legal aid funding and pittance payments for what remains. They praised as a sign of the future the decision to move online and close all those courts. They urged lawyers with mortgages and overdrafts to do more work “pro bono” as though that useless sticking plaster could somehow also magically cover those kindly lawyer’s monthly outgoings, house and feed their families. There’s no money. And no appetite for change in government. So we just have to suck it up.
I understand where they are coming from, of course the pressure from Government will have been immense, but I still respectfully disagree. The Judges are even more clearly now, our very last lines of defence.
Some of the younger Judges last week were revealed to be suing the Lord Chancellor as their pensions aren’t coming up to scratch. They were threatening to leave the Bench en masse. So very alarmed was Ms Truss that she even gave a speech suggesting high flying solicitors might consider applying to the High Court Bench. It must be a seriously panic stricken suggestion given her predecessor Michael Gove last week was also criticising the work of solicitor advocates in criminal law for taking work away from the criminal Bar. The Judiciary clearly do have considerable collective muscle. Without them the courts would grind to a stop. So perhaps with a weak Lord Chancellor in office it might still be possible to help those who can do no more for themselves than send a desperate one line sentence to this blog.
Sad isn’t it?
Read Re A and Re B Children here.