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Mrs Justice Pauffley profoundly alarmed

(34 Posts)
LauraBridges Wed 19-Feb-14 08:21:24

I am sure many of us will be concerned by this in the press today:

"Courts are routinely removing children from their mothers into care after “cutting and pasting” the arguments put by social services and rubber-stamping them, a senior judge has warned.

Mrs Justice Pauffley said that she was “profoundly alarmed” at the discovery that family courts were effectively in cahoots with social services through such “clandestine arrangements”, which undermined the independence of the justice system. She added: “It is patently wrong, must stop at once and never happen again.”
The judge made her comments as she granted an appeal to return a baby to his mother in a case she described as “shocking and disturbing.” Far from being an isolated instance, the judge said that her informal inquiries had led her to believe that “such actions are widespread across the country”.

Her views are backed by England and Wales’ most senior family judge, Sir James Munby, who has written to alert all family lawyers.
Mrs Justice Pauffley overturned a decision by a family proceedings court to remove a baby just days old from his mother and place him in foster care, saying that the baby, now three months, should be “reunited with his mother forthwith”. His mother, 32, who has been addicted to cocaine, heroin and alcohol and has seven other children, had “good emotional interaction” with her baby and the quality of her contact had been “good or excellent”, she said.

In the original hearing in November, a submission on behalf of the local council arguing for foster care was used by the court to produce its formal “findings of facts and reasons” report. Mrs Justice Pauffley said: “They are strikingly similar — the majority of the paragraphs are identical — as a result, almost certainly, of cutting and pasting.”

The judge had been told that family courts expect local authorities to provide their draft “facts and reasons” for every public hearing. This amounted to “an established but largely clandestine arrangement between the local authority and the court which, to my mind, has considerable repercussions for justice”, the judge said.

She added: “While I might be able to understand why such methods may have developed, I am profoundly alarmed by their existence.” It would be difficult for family courts to be seen as “independent and impartial if, as happened here, they simply adopt the local authority’s analysis of what their ‘facts and reasons’ might comprise”.

The case has come to light because of Sir James’ practice direction last month aimed at opening up the family justice system . He said that he wanted all judgments on parental access to children and care orders to be published unless there were “compelling reasons” not to.

In her ruling Mrs Justice Pauffley said that the mother had had a “sad, unhappy childhood”. When she was 15, she formed a relationship with a 26-year-old man, who fathered her elder four children. Both abused alcohol and drugs and there was domestic violence. A residence order was made in favour of the father.

The mother’s next three children were born between 2006 and 2009 when she was in a relationship with another man, the judge said. The seventh child was born as she was withdrawing from drugs and he was made the subject of an emergency protection order and placed with foster parents.
She became pregnant with the baby at the centre of the ruling as a result of a “fleeting relationship with a third man” who has played no further part in her life. The mother maintains she told her GP when she was seven weeks pregnant and asked for social services to be notified.

She was admitted to a specialist treatment centre to help her detoxify and when the baby was born he showed no signs of drug withdrawal.
The local authority began its application for a care order in October with “extensive reliance on her history”, the judge said. It also said she had failed to make meaningful lifestyle changes."

HollyHB Wed 19-Feb-14 12:07:34

> England and Wales’ most senior family judge, Sir James Munby, who has written to alert all family lawyers.

IMHO that's the crucial part and to reserve judgment until we see what Munby has written.

Then hopefully we can get some clarity as to whether it is a very small number of criminal social workers or pervasive corruption. Right now there is major disagreement as to which.

checkmates Wed 19-Feb-14 12:24:49

Great informative post Laura

LauraBridges Wed 19-Feb-14 12:36:41

Someone could pull up 200 random such reports from various regions of England and see if there has been cut and pasting. Technology these days makes those kinds of tests easy to do.

nennypops Wed 19-Feb-14 14:04:34

What Munby has written is already available - it's:

Finally, can I draw attention to two important recent decisions of significance in relation to practice in public law cases. In A Local Authority v DG and Others [2014] EWHC 63 (Fam), [2014] 2 FLR (forthcoming) Keehan J strongly criticised the wholesale failure of all the parties to comply with the court's directions and gave important guidance as to the practice to be adopted where there are concurrent public law and criminal proceedings, in particular in relation to s 98 of the Children Act 1989. In Re NL (A child) (Appeal: Interim Care Order) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur. Both judgments, if I may say so, will repay careful consideration by all public law practitioners..

See www.familylaw.co.uk/articles/view-from-the-presidents-chambers-the-beginning-of-the-future

nennypops Wed 19-Feb-14 14:09:49

Then hopefully we can get some clarity as to whether it is a very small number of criminal social workers or pervasive corruption. Right now there is major disagreement as to which.

It's neither. Spero has commented helpfully on this on another thread:

"What people need to understand is that Magistrates must by law provide full written reasons for all their decisions these are known as 'facts and reasons'. It is not uncommon for the drafting of this document to take very many hours as Magistrates are not professionally qualified or trained lawyers - albeit they are assisted by a legal adviser.

Sometimes we have been at court until 8 or 9pm. This is obviously very hard on parents and often I have been asked to 'help' the Magistrates by drafting all or part of their 'facts and reasons'. Note this is NOT their decision but the 'facts and reasons' that support their decision.

I agree that this can on occasion be poor practice. But it isn't evidence of corruption or collusion etc. If LA put in a document that I don't accept, then I object and it is amended.

I can see what went so wrong in this case was that the mother's legal team had no input into the draft and I agree that is profoundly wrong and the judge was right to criticise that in the strongest terms."

See www.mumsnet.com/Talk/in_the_news/1965606-Parents-should-go-abroad-to-avoid-family-courts?pg=3

HollyHB Wed 19-Feb-14 14:12:33

> What Munby has written is already available - it's:

No, I meant the letter from Munby that the article in the Times refers to.

HollyHB Wed 19-Feb-14 14:18:26

> It's neither.
It must be one or the other.

QUOTE
: “clandestine arrangements”, which undermined the independence of the justice system.

Are unequivocally criminal.

nennypops Wed 19-Feb-14 16:01:27

What does the article in The Times say about Munby's letter?

nennypops Wed 19-Feb-14 16:09:20

It must be one or the other.

Why? I think the circumstances are basically as set out in Spero's message which I quoted; that normally these documents are drafted with the help of both sides; and that if they are, they are not clandestine. I'm not sure that the report necessarily demonstrates anything other than that in this case, and possibly others, some courts have been going wrong in only consulting one side - but we need rather more evidence than a judge saying she has made informal inquiries.

With regard to the report in The Times, are you referring to this bit from the OP:
"Her views are backed by England and Wales� most senior family judge, Sir James Munby, who has written to alert all family lawyers." ? If so, I think that does refer to what I quoted - it comes from a general round-up that he does for family lawyers called "View from the President's Chambers".

LauraBridges Wed 19-Feb-14 16:45:05

(Yes my first post was what is in the Times today. I am not sure that the letter to family lawyers would necessarily be released to the press)

Spero Wed 19-Feb-14 17:46:53

I agree this is a very concerning case and I have just posted a full response to the accusation made by FASSIT that it is simply more evidence of widespread corruption in the family courts.

I hope that if anyone is going to make such allegations, they will at least read this first.
www.childprotectionresource.org.uk/response-to-commentators-4/

Spero Wed 19-Feb-14 17:49:34

nennypops is right - Sir James Munby has been publishing various 'views' about the recent changes in practice and procedure after the new 26 week timetable and the unified family court.

He has simply said in his 'tenth view' that we MUST ALL read this judgement. And I agree. It is a painful remainder of just how serious it is when people get sloppy.

But I don't agree it is evidence of wide spread corruption, babysnatching to targets, etc, etc, etc ad nauseam.

Spero Wed 19-Feb-14 17:50:46

If anyone wants to read his tenth 'view' you can find it here.
flba.co.uk/blog/2014/02/13/presidents-view-no-10/

nennypops Wed 19-Feb-14 17:51:35

I don't think Sir James Munby has sent any letter to family lawyers - The Times' article doesn't say so, it just says he has written something to alert them - i.e. the comment that I have quoted. There are an awful lot of family lawyers around, I really can't see a judge in his position writing to them all individually every time a significant judgment comes out rather than using his published round-up on the Family Law website.

Spero Wed 19-Feb-14 17:54:44

No. He doesn't write us 'letters'. He publishes his 'views' on the FLBA website and then I get emailed them a thousand times by my clerks until I break down and read them.

LauraBridges Wed 19-Feb-14 18:00:23

Thanks for the link. He says this
"Recent cases

Finally, can I draw attention to two important recent decisions of significance in relation to practice in public law cases. In A Local Authority v DG and others [2014] EWHC 63 (Fam), Keehan J strongly criticised the wholesale failure of all the parties to comply with the court’s directions and gave important guidance as to the practice to be adopted where there are concurrent public law and criminal proceedings, in particular in relation to section 98 of the Children Act 1989. In Re NL (A child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), Pauffley J had to deal with circumstances which I hope will never recur. Both judgments, if I may say so, will repay careful consideration by all public law practitioners. "

nennypops Wed 19-Feb-14 18:40:55

Laura, that's what I quoted and linked to at 14.04.

HollyHB Wed 19-Feb-14 19:22:03

> Why? I think the circumstances are basically as set out in Spero's message which I quoted;

Spero's analysis provides an arguably plausible argument (at a stretch) that there has not been criminal behaviour in the particular case of in Re NL v. An Anonymous Local Authority

However, Pauffley has written, at 67, "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. "

If indeed there actually was such a clandestine arrangement, and not merely an apparently clandestine arrangement, then that is criminal behaviour by both parties to the arrangement. Justice will not be seen to be done until it is resolved whether there was or was not, in fact, a clandestine arrangement between the local authority employees and the court officers. I can't believe for a moment that a clandestine arrangement would be formally approved by the local authority itself as contrasted with criminal wrongdoing by an employee.

Pauffley further states, at 65, " ... Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this area but are widespread across the country. " Which suggests, but does not confirm that it is widespread corruption and denial of due process rather than isolated malfeasance. Again nothing short of a public investigation to determine which it is will restore faith in justice.

Meanwhile, until and unless confidence is restored the underground railroad will continue to gain momentum as people take justice into their own hands.

Perhaps widespread as Pauffley wrote is a better term than pervasive as I wrote, though it is a fine point.

Spero Wed 19-Feb-14 19:42:04

I don't deny things went badly wrong here.

But to call it 'criminal' is a little odd.

Tell you what Holly, why don't you take this to the police and see what they say? What crime do you think they should charge the magistrates with?

I am not excusing what went on here but remember this mother had been addicted to drugs and alcohol for 14 years and was not able to care for any of her SEVEN previous children. I am not surprised that by baby number 8 the LA was a bit cynical.

nennypops Wed 19-Feb-14 20:18:14

All this talk of an "underground railroad" ludicrously romanticises the situation which, according to FASSIT and the likes of John Hemming, is a totally above board, lawful and open emigration. It's also really quite offensive when you look at the origin of the term, which related to slaves in the US escaping to freedom.

It further glosses over serious worries that, in encouraging parents to take their children abroad to avoid social services investigation, organisations and people like this may well be sending children where they are also out of reach of rescue from serious physical, mental and sexual abuse, and where they may be deprived of the opportunity of proper investigation and treatment of serious medical problems.

HollyHB Wed 19-Feb-14 22:55:46

Spero, I hope you are not suggesting that because NL had been addicted to drugs for 14 years and had been unable to take care of seven children that means she should have some lesser version of justice, no right to due process free of clandestine agreements and conspiratorially drafted judgments?

Let me tell you what people think when they read that stuff -
Pauffley writes:
"It is patently wrong, must stop at once and never happen again. "
- something was is very wrong with the process, is still going on, needs putting a stop to and will continue if not stopped.
"clandestine arrangement between the local authority and the court"
- perversion of justice with both sides to blame.
- Is willful perversion of justice a crime then, or perhaps only a civil tort and NL should sue for money for two months without her daughter? (sarcasm intended)
"the practices I have described are not confined to this area but are widespread across the country. "
- it's everywhere, the system is rotten to the core.

Munby writes: "Pauffley J had to deal with circumstances which I hope will never recur."
- Munby is willing to hope, but not willing to act. Just hopes it is carefully kept out of sight in future.
- If (hah!) the guilty go scot-free of consequences then it most certainly will happen again. And again.

I'll say this though Spero - you are well suited to your vocation.

Of course the police won't do anything. The police expect the courts to police themselves, even though we all know they won't.

nenny, "underground railroad", of course it is illegal and hidden. By its nature an informal secret network of ever varying routes and safe houses. Underground railroads have always been that way. In the USA in 1840, in Austria during the Russian revolution, in France in 1940, in East Germany in 1958. Nothing romantic about it, more an act of desperation.

HollyHB Wed 19-Feb-14 22:58:32

Oh, and don't get me wrong, I do think Joseph is low life and makes things worse not better. The social workers can truthfully say "Look at him, we're not as bad as him!".

Spero Wed 19-Feb-14 23:11:16

Spero, I hope you are not suggesting that because NL had been addicted to drugs for 14 years and had been unable to take care of seven children that means she should have some lesser version of justice, no right to due process free of clandestine agreements and conspiratorially drafted judgments?

No. of course I am not saying that. I would have to be a)unable to read and/or b)unable to understand the judgement we are currently discussing and c)devoid of any humanity or compassion or belief in the rule of law to suggest that.

What I DID suggest is that most reasonable human beings, on hearing that a woman had SEVEN children removed from her care because she was addicted to drink, drugs and in a violent relationship - might just raise a sceptical eyebrow at the notion she is about to give birth to number 8.

If she manages to turn this around and conquer her addictions, that will be wonderful for her and her son and i wish her all the strength and determination she will need.

BUT I am afraid it is very difficult and very unlikely for someone with that history to turn it around. So I don't blame SW at all for feeling frustrated that yet again they may have to witness a child grow attached to a mother who maybe unable to care for him.

Of course this doesn't support denial of anyone's human rights.

It underscores that real life is messy and difficult and decisions are not always clear cut or easy.

But glad to see you dissociate yourself from Ian Josephs at least.

Spero Wed 19-Feb-14 23:14:14

Munby is willing to hope, but not willing to act. Just hopes it is carefully kept out of sight in future.

But Munby has acted. he has made sure more judgements will be published, as widely as possible. He has not been shy of criticising what he sees as poor practice and rightly so.

I am not quite sure what else you expect from him, unless you want him to perform a citizens arrest on every Magistrate in the country?

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