President of Family Division Mckenzie Friends add value

,     
                                                                                                          A recent report from the House of Commons Justice Committee quoted Sir James Munby President of  the Family Division  “in the areas where there is no
representation, some kind of support or input is better than nothing. In my experience
most McKenzie friends add value. They tend to be articulate and to have understood what
the case is. Many of them have a surprisingly good grasp of the law, not just book law but
how the courts work.”



You can read the whole report here: http://bit.ly/1ByXLWO

Lord  Dyson Master of the Rolls told the committee 
"The problem comes not at the hearing stage, but at the pre-hearing stage and the case
management conference stage when the judge first gets to grips with the case, tries to
knock it into shape, see what the issues are, and give directions for the efficient and
proportionate conduct of the litigation. It is at that stage where, if you have lawyers
present, they are used to narrowing the issues, and they do.
He said that is was primarily lack of legal advice, rather than lack of representation, which
meant that “Judges have to spend ages ploughing through page after page of applications
for permission to appeal, very often in almost illegible manuscript, and they take much
longer than would something equivalent from a lawyer. In fact, the likelihood is that a
lawyer would not do it because they would know there was [no legal merit] in it.” The
need for judges to ensure justice is done means they cannot rely on unrepresented litigants’
conception of their cases.                                                                                                           Sir James Munby told us: “…litigants in person, particularly in
family cases, think they have a lot of good points. Most of their good points are thoroughly
bad points. It is a slight exaggeration, but they have great difficulty in finding the good
points. You have to go on your own search to find the good points, and that takes up a lot
of time.” Sir James also said that “there is a lot of anecdotal material” that litigants in
person led to hearings in the early stages of family cases taking longer because of the need to explain proceedings to the unrepresented litigant, although Sir James also said “I suspect
there may be truth in the assertion that the final hearing is taking less time…” because
“litigants in person…tend to dry up.”

 Lord Dyson agreed with Sir James that hearing times are not a good indication of
whether the litigant in person is able successfully to represent themselves:
I am afraid, that very often litigants in person are totally overawed by the experience
and they just dry up…They put in their witness statement and their case, and you
say, “Now, Mr So-and-So, what do you want to add?” They just say, “Well, nothing.”
They just freeze, frankly. Of course, there are some litigants in person who will go on
talking for ever, but if you balance the two it does not surprise me, if the evidence
shows this, that overall the length of a hearing with a litigant in person is no greater
than with lawyers.
Lord Dyson told us, that while judges make all possible allowance for litigants in person,
they could only go so far: “We still have an adversarial system…I suppose a judge could
say, if the judge sees that there is something in the litigant in person’s witness statement
that is crying out for some elaboration, “Mr So-and-So, I see you say this in paragraph 25
of your statement. I wonder whether…”” but the judge ran the risk of losing the faith of the
other party in the case if he or she was seen to do the opposing party’s job for them.

 Sir James also emphasised the use of safeguards, such as hearing directly from the litigant,
even where the McKenzie friend has been given permission to address the court. Steve
Brookner, of the Legal Services Consumer Panel, which supports the greater use of
McKenzie friends, emphasised that judges had the power to exclude disruptive McKenzie
friends. 
What a Mckenzie friend does has been previously posted. 

 Children's Services are not moral guardians

The actual guardian does not get off lightly either!

Finally in this case http://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

there appears to be light at the end of the very long tunnel.

The President of the Family Division goes to town on social workers and the children's guardian overturning an application for adoption and allowing the child to live back with the father.

This is despite the father having a history of sex with an under aged girl, cannabis use, and drink related domestic violence. Plus to top it all membership of the English Defence League. 

The highlights:

The President refers to previous decisions 

That approach was endorsed by the Supreme Court in In re B. There are two passages in the judgments of the Justices which develop the point and to which I need to draw particular attention. The first is in the judgment of Lord Wilson of Culworth JSC where he said (para 28):

"[Counsel] seeks to develop Hedley J's point. He submits that:

'many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or "model" them in their own lives but those children could not be removed for those reasons.'

I agree with [counsel]'s submission".

The other is the observation of Baroness Hale of Richmond JSC (para 143):

"We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs."

If this is so how are so many cases pushed through on the flimsiest scraps of hearsay evidence?

The President tackles this ;

i) In a significant number of very material respects the local authority has simply failed to prove the factual underpinning of its case.

ii) SW1’s work was seriously flawed. Neither SW2 nor CG seems to have explored or analysed in any detail the underlying factual basis of the local authority’s case. In large part they simply accepted SW1’s factual assumptions. Insofar as they conducted independent investigations with the father, each met him only once, SW2 for about 75-80 minutes, CG for only 45 minutes.

iii) The local authority was too willing to believe the worst of the father, which led to it being unduly dismissive of what he was saying.

 For how long have parents been saying this?

Should social workers be policing public morality ?

There are two things about this which, to speak plainly, are quite extraordinary. First, what is the relevance of the assertion that the offence he committed was “immoral”? The city fathers of Darlington and Darlington’s Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality. Secondly, how does any of this translate through to an anticipation of harm to A? The social worker ruminates on the “current risk he poses” to “vulnerable young women”? What has that got to do with care proceedings in relation to the father’s one year old son? It is not suggested that there is any risk of the father abusing A. The social worker’s analysis is incoherent.

This case resets the bar

How many times have we read , children removed because of lesser "offences" than outlined here.

It's about time and perhaps now social workers, or perhaps more importantly their managers would have had a sufficient prod with this case to actually start supporting families instead of splitting them up on hearsay. Or perhaps I'm just dreaming zzzz