Re NL is one of those cases which truly reveals the corruption which we all know exists in the family courts, but sometimes find it difficult to prove.
Well, there is no such difficulty here; Mrs Justice Pauffley is absolutely clear about the disgraceful practices she has exposed and the President, Lord Justice Munby, has endorsed her judgement and suggested that all care practitioners read it.
The case, Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons)  EWHC 270 (Fam), concerned a mother who had had a troubled childhood and relationships marred by reciprocal domestic violence. She had long-standing issues with heroin, cocaine and alcohol. The father was awarded residence of her 4 elder children; a different father had residence of the next two children. The proceedings concerned the mother’s 7th child for whom an emergency protection order was made and who was placed with foster parents.
Two widespread but unacceptable practices are condemned by Pauffley. The first, often discussed by tabloids like the Daily Mail, is the tendency of local authorities to commission reports from experts they know will produce a report in their favour, arguing for the removal of a child from its parents. These reports can be immensely expensive but a 2012 study by Jane Ireland found 90% to be written by ‘experts’ who were not actually engaged in psychological practice; she rated 65% as ‘poor’ or ‘very poor’.
In the case of NL the expert report was commissioned from Dr Celest van Rooyen, a chartered clinical psychologist, and completed in the space of the single day prior to the hearing: the letter of instruction and report are dated the same day. The report was based entirely on a paper assessment and on details provided during a telephone call by a local authority professional who had never even met the mother. Contrary to the recommendation in the letter of instruction, van Rooyen did not approach the drug dependency unit treating the mother. Pauffley said,
I am gravely troubled by the speed, the manner and the ambit of Dr van Rooyen’s involvement. It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.
I struggle to understand how Dr van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the unit working with the mother on her drug dependency].
She expressed alarm that the LA had sought a report in such circumstances and alarm that van Rooyen had agreed to undertake it, and offered this explanation,
There was too much local authority emphasis upon securing an expert opinion to support removal from the mother and too little focus upon ensuring a just and fair assessment process. Justice must never be sacrificed upon the altar of speed.
I conclude that the mother and NL were unfairly treated; that the evidence justifying their separation was flawed; that the Justices’ decision to separate was wrong.
The second practice denounced by Pauffley concerns the writing of ‘Facts and Reasons’ reports. These are supposed to be written by magistrates to justify why they made a particular decision in a particular case. What Pauffley uncovered was that they are actually being written by counsel for the local authority and handed to the magistrates for them to ‘cut and paste’. As Pauffley identifies, this practice denies parents their Article 6 right to a fair trial,
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 comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible.
In the present case the draft report was emailed to the magistrates prior to the hearing. The mother only saw a copy of it, on paper, on the day of the hearing itself, and her legal team was allowed to have no input.
Counsel for the LA then amended the draft to include the parties’ positions and the expert’s report obtained the previous day; this version was then sent to the court during the hearing and became the ‘Facts and Reasons’ report.
Pauffley delayed publication of her judgement for ‘a fortnight or so’ so that she could investigate the circumstances, including the extent of the practice; she said,
Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country.
There were process failures in this case which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to every other party.
Just 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 should always be remembered that in public law proceedings the local authority is the applicant. It is not and should never be seen as the decision maker. That is the role of the court. There is no room for confusion. Justice must be upheld. There is no scope for any dilution of that most fundamental concept.
The mother’s appeal was allowed and it was ordered that her infant son be returned to her.
This case will reinforce the belief many already have that care applications by local authorities are simply rubber-stamped by the courts. It is already widely known that nation-wide only 0.25% of such applications are rejected and that in many courts 100% pass through unobstructed. Few people, I suspect, will have realised the extent of the complicity between local authorities and magistrates; manifestly this dealing – you write our report for us and we will approve your application – is ‘patently wrong, must stop at once and never happen again’.