For those family law practitioners who read through to the end of the tenth View from the President’s Chambers, attention was drawn to the recent case of Re NL (A child) (Appeal: Interim Care Orders: Facts and Reasons) [2014] EWHC 270 (Fam). In this appeal case Mrs Justice Pauffley condemned the familiar scenario of magistrates adopting wholesale the “Facts and Reasons” written up and sent to them in advance of the hearing by the representative for the Local Authority.

The Local Authority in this case sought an Interim Care Order in respect of NL. A history of the mother abusing illicit substances even into the first two trimesters of her pregnancy was relied upon, as well as failure to engage with professionals and to make meaningful lifestyle changes. At the time of the hearing the mother was at a specialist resource to help her tackle her substance misuse. A letter in support of the mother was provided from the resource. The Local Authority relied upon a clinical psychologist, Dr Van Rooyen, who was instructed the day before the hearing and who had neither spoken with the mother nor seen NL. Dr Van Rooyen was invited to speak with the Practice Manager (who had also not met the mother) and the resource where the mother was staying, but did not have time for the latter.

On 7th November 2013 an Interim Care Order was granted to the Local Authority. The Facts and Reasons used were those prepared in advance of the hearing by counsel for the Local Authority.  

Justice vs Speed

In her judgment Mrs Justice Pauffley first condemns the manner of Dr Van Rooyen’s instructions:

It surprises and alarms me that Dr van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a local authority professional who had never met the mother. [35]

Referring to the family justice reforms and the focus on speed which it was felt had influenced the rushed manner of Dr Van Rooyen’s instruction, Mrs Justice Pauffley noted that “justice must never be sacrificed upon the altar of speed [40].

Fair Trial

At the hearing prior to the contested ICO application on 7th November 2013 a draft set of “Facts and Reasons” for an ICO had been sent in advance to the lay bench by the local authority’s counsel. Hard copies were provided outside court to the parties. It was apparently the FPC’s expectation that drafts would be sent to them in advance, without an expectation that they would be sent to the other parties before the day of the hearing. If “Facts and Reasons” were not forthcoming they would be requested of the local authority.

Mrs Justice Pauffley was clear on the inappropriateness of such an approach:

it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority's analysis of what their Findings and Reasons might compriseJust because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again. [68]

Revised guidance issued in March 2014 for magistrates includes the following points:

  • Under no circumstances should any party be involved in drafting the Reasons, even when orders are agreed or not opposed.
  • Reasons may refer to documents filed by the parties such as position statements, and parts may be adopted such as the background or chronology.
  • The key principles of Re NL apply equally to private law as to public law cases.
  • Magistrates must ensure not only that justice is done but that it is seen to be done.