President Munby Principles

Some fundamental principles stated by Sir James Munby, President of the family court:

In the light of the way in which this case has been presented and some of the submissions I have heard, it is important always to bear in mind in these cases, and too often, I fear, they are overlooked, three fundamentally important points. The present case is an object lesson in, almost a textbook example of, how not to embark upon and pursue a care case.

The first fundamentally important point relates to the matter of fact-finding and proof. I emphasise, as I have already said, that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely. I draw attention to what, in Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26, I described as:

the elementary proposition that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation.

This carries with it two important practical and procedural consequences.

  • The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove.
  • Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings.
  • But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.

As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

The second practical and procedural point goes to the formulation of threshold and proposed findings of fact. The schedule of findings in the present case contains, as we shall see, allegations in relation to the father that “he appears to have” lied or colluded, that various people have “stated” or “reported” things, and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents, is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion. What do the words “he appears to have lied” or “X reports that he did Y” mean? More important, where does it take one? The relevant allegation is not that “he appears to have lied” or “X reports”; the relevant allegation, if there is evidence to support it, is surely that “he lied” or “he did Y”.

Re B (Children: Long Term Foster Care) [2014] EWCA Civ 1172

Appeal against care orders in respect of two boys. Appeal allowed and case remitted for rehearing by a different judge.

This case concerned two boys, A and B, who were age 11 and almost 10 respectively at the time of the appeal hearing.  The appeal was brought by their mother against the decision of HHJ Scarratt, on 30 October 2013, to make final care orders in respect of both boys.

The judgment describes the concerns about the children as ‘diverse’.  These included domestic violence between the parents, poor home conditions, poor school attendance, trouble caused by family members, the children being out unsupervised at night and the mother being stabbed by a neighbour.  Although at the outset of the proceedings, the local authority had sought interim care orders, they subsequently accepted that the boys could remain at home during the proceedings under interim supervision orders.  The evidence at this time acknowledged that the mother had been able to make improvements and work with professionals for the benefit of the children.

During the course of the proceedings, the mother continued to show some positive engagement although fresh issues also arose which gave the local authority and the Guardian cause for concern.  However, the local authority evidence reflected its plan for the boys to remain at home under interim supervision orders.

The local authority changed its plan to one of foster care prior to a hearing on 5 September 2013.  This was due to the ongoing concerns and their view that ‘only minimal improvements’ had been made despite the support and the ongoing reports of fresh incidents of concern.  Further incidents occurred between the local authority’s final evidence and the final hearing in October 2013.

At that hearing, HHJ Scarratt preferred the evidence of the local authority and the Children’s Guardian and made the care orders sought.  The mother’s grounds of appeal were distilled into the following propositions:

  • That the judge failed to scrutinise properly the local authority’s change of position from July 2013 to August 2013;
  • That the judge wrongly accepted the local authority’s evidence about two of the incidents in September when the witnesses to those incidents had neither given statements nor attended to give oral evidence.

The Court of Appeal held that the judge had failed to carry out a sufficient analysis of the alleged incidents that had given rise to the change of position and had failed to make findings about what had occurred.

Matters were not helped by the local authority having confused the criminal record of the mother’s new partner, Mr SB, with that of his brother.  It was difficult to ascertain from the judgment what the judge had made of the supposed convictions of the partner as his reasoning was unclear.  Moreover, the judge had not determined whether the mother had ended her relationship with this partner and whether that showed an ability to put the needs of the children first.  His reasoning about the mother’s association with Mr SB was therefore described as ‘decidedly shaky’.

In relation to a finding that the judge had made, namely that the mother’s partner had assaulted A, the judge had not carried out sufficient analysis of the evidence before him to justify that finding given the significance of that alleged incident in the proceedings overall.

In allowing the appeal and remitting the case back for a fresh final hearing before a different judge, the judgment emphasises that the Court of Appeal did not do so because there was insufficient evidence to justify a care order but:

The basis on which we allowed the appeal was that the judgment was flawed in its approach to the events which led to LA’s change of mind and was lacking in the detail that was required to substantiate the decision taken. The more finely balanced the decision in a case, the more exacting must be the judge’s approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination.

The judge’s treatment of the background history lacked sufficient detail and analysis and so this compounded the difficulties with his treatment of recent events and:

In short, this was a case which could only be resolved by a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.

Advertisements