Wednesday, November 14, 2012

G (A Child): Will the lawyers take some responsibility for the future conduct of this case?

Lord Justice Ward
In this post I intend to mention just one point arising from the judgment in G (A Child) [2012] EWCA Civ 1408 (31 August 2012), which has just appeared on Bailii. The point is made by Lord Justice Ward in what amounts to an addendum to his leading judgment and is quite topical, in the light of the current discussions regarding the duration of care proceedings.

The case before the Court of Appeal comprised applications for permission to appeal against findings of fact in respect of injuries to the child, by both the local authority and the mother. Permission to appeal was unanimously refused in both instances, Lord Justice Tomlinson pointedly saying: "Appeals against the findings made by a judge in a fact-finding exercise should in my view be rare and are not to be encouraged."

Lord Justice Ward, however, also had something to say about the management of the case. The injury to the child had occurred on the 14th of March 2011, and the fact-finding hearing did not start until February 2012, eleven months later. Nevertheless, the local authority, apparently even then still unclear what facts it was going to assert constituted significant harm attributable to the parents, had not invited the judge not only to find the facts, but to find whether or not the threshold of section 31 had been crossed. "That", said Lord Justice Ward, "is precisely the purpose of a fact-finding hearing, to divide this into two manageable halves -- the threshold is or is not crossed for these facts as I find them -- and then go on to part two of the exercise, the welfare disposition."

As a result, the case is going to have to go back for another five-day hearing, for another judge to decide whether the threshold has been crossed, a "complete duplication of effort". The fault, Lord Justice Ward considered, lay with the lawyers:
"The lawyers are there to advise as lawyers, not as social workers, and the lawyers have the responsibility of taking a decision whether the facts that are established or the facts that are likely to be established, stack up sufficiently to amount to significant harm. It is not a social worker question, it is a legal question, and that is a matter for lawyers to answer, and if this case does not stack up to significant harm, the sooner it is ended the better. Obviously welfare issues do or can arise, and even there it may require some input from the lawyers; but please, will the lawyers take some responsibility for the future conduct of this case?"

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