On Wednesday 19th October, two of Wainwright & Cummins’ Family Law practitioners were invited to attend 5 Pump Court Chamber’s inaugural Family Law Conference, hosted by the Honourable Society of the Inner Temple.
Guests were treated to three seminars, starting with Kevin Gordon’s opening address to all attendees, ‘Children Law Update: A thematic overview of developments in children law (public and private) in 2022’.
For the first half of his seminar which pertained to public law developments, Mr Gordon broke the session down into four primary points of note:
- Vulnerable Party: Fairness of Proceedings
- Fact-Finding Hearing: Fairness
- Adequacy of Reasons
- Revisiting Proportionality
The ‘fairness of proceedings’ is a high point of contention in family law cases, as each party demands that their account of events and circumstances be put forward with equal strength before the judge for fair assessment. Any perceived wavering in this crucial element of the judicial process can lead to judgements being appealed and possibly overturned.
Distress then arises not only for the aggrieved party who feels as if their case hasn’t been fairly heard, but for every party who has had doubt cast upon the certainty of the court’s initial judgement. Cases are prolonged while the Court of Appeal revisits all the evidence, and in the process old wounds are reopened, and the lives of children and parents are once again held in a precarious balance.
As a framework for discussing issues of procedural fairness, Mr Gordon used the example of S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8, where an appeal was launched against a fact-finding judgement, found to be unjust due to procedural irregularity.
Whilst procedure is ultimately up the judge’s discretion, irregularities are surprising as, by their very nature, they are not the usual order of things. If a judge veers too ‘off-course’, counsel and solicitors are entitled to raise concerns over judicial process, again leading to judgements being overturned and the legal confusion surrounding one’s family life being interminably extended.
In the case of care proceedings, such delays are wholly undesired: children cannot pause their growing up to fit with court timelines, and so the months of uncertainty caused by the Court of Appeal’s review is precious time lost for a child and its carers, prevented from settling into their new future.
In his second case study, Mr Gordon referenced Re L (Fact-Finding Hearing: Fairness) [2022] EWCA Civ 169. This Court of Appeal ruling found that a judge is correct to go beyond the Local Authority’s threshold if they have read all the evidence presented by both the Local Authority and the parents, and deem there to be missed findings which should be levied against the parents. Despite this judge’s highly irregular action (usually the Local Authority’s threshold document is viewed as accurate or even excessive, not overly cautious), the Court of Appeal ruled that the judge was right to go beyond the threshold.
Judges are supposed to uphold justice and, in the case of care proceedings, always be guided by the child’s best interest. If facts had been missed by the Local Authority, that is no reason why they should be ignored by the Court altogether.
Mr Gordon’s third point of interest, Adequacy of Reasons, is one which goes to the heart of a lawyer’s most crucial skill: successfully arguing a client’s case. Here, Mr Gordon referred to the recent Court of Appeal case Re B (Adequacy of Reasons) [2022] EWCA Civ 407, where an appeal had been launched against care and placement orders, as a District Judge was found to have failed to engage with the all evidence.
Although Re B addressed the shortcomings of a judgement (a judge’s assessment made at the end of proceedings and thereby intended to be evaluative, not argumentative), the lessons learnt by the Court of Appeal ruling can be more generally applied to all legal practitioners when presenting one’s reasoning. The Court of Appeal judge, Lord Justice Peter Jackson, stated that the correct manner to present a judgement is, in this order, to:
(1) state the background facts
(2) identify the issue(s) that must be decided
(3) articulate the legal test(s) that must be applied
(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned
(5) record each party's core case on the issues
(6) make findings of fact about any disputed matters that are significant for the decision
(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties
(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.
Points (1), (2), (3) and (4) are the most relevant to a solicitor or counsel constructing their client’s argument and presenting the facts and various points of contention before the Court. A proper overview of the background facts allows a judge to see the full context in which the contested events arose. Similarly, clear identification of the issues that must be decided allow a judgement to be deliberate and exact, rather than overly broad and potentially vague.
Identifying the relevant legal tests also support the client, as all parties are aware of which laws their case is being tested against and what are the boundaries or limitations of those laws. Articulating clearly and coherently a client’s case is the most important role of a lawyer, and so any lessons in argument structure offered by the Court of Appeal should be studiously learnt.
The final point raised by Mr Gordon revisits ‘proportionality’, a key term in understanding judgements in care proceedings. When families are already suffering major disruption due to chaotic circumstances at home, various care orders issued by the Court, and are awaiting certainty to be delivered via a judgement, the outcome proposed by the judge must be proportional to the issues raised.
Care proceedings only occur when it is believed that a child is suffering or at risk of suffering harm, as established in ‘the welfare checklist’ of the Children Act 1989. Yet, according to the UKSC, “The Court’s ability to make a care order is an intrusive power which engages article 8 of the European Convention on Human Rights (the right to private and family life).” In other words, both parent and child have a legal right to live together which in ordinary circumstances should be respected.
Therefore, if the court is acting to remove the child from its parent(s), the court’s reasoning must be watertight. Care orders must not be deemed excessive and should only be launched if regarded by the court as absolutely necessary. Clearly, they must be proportional to the circumstances.
Many thanks to Kevin Gordon of 5 Pump Court Chambers for presenting such an illuminating lecture, and to Clare Kelly, Head of Chambers, for organising a brilliant event.
