Tuesday, April 23, 2013

Devon County Council v EB & Ors (Minors): Final observations of Mr Justice Baker

Mr Justice Baker
I do not propose to summarise this case, just to set out the final observations made by Mr Justice Baker at the end of his judgment, which I think are of particular note.

Very briefly, the case concerned an application by the local authority for care orders, where there had been apparent non-accidental injuries to two of the three children. Mr Justice Baker held that the threshold conditions were not crossed, and the application was therefore dismissed.

His judgment ended as follows (my emphasis):
"I conclude with a few final observations. This case demonstrates yet again the importance of a full and thorough forensic examination of cases of suspected child abuse. A full and thorough investigation involves a number of elements. First, it requires judges of sufficient experience who are able to manage cases through the course of the proceedings. Judicial continuity is a crucial component of the modern family justice system. This case was due to be managed and heard by Mr Justice Holman but, for reasons set out above, the interim hearing and in due course the final hearing have been conducted by me. The fact that I heard the interim hearing concerning T and then the final hearing has been, I think, of very considerable importance.

Secondly, this case required the involvement of a range of experts from different disciplines. If the case had been decided purely on the basis of the treating doctors, the outcome may have been very different. The perspective brought, in particular, by Dr Halliday, Dr Anslow, Mr Richards, Dr Sunderland and Professor Pope has been very important. Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.

Thirdly, this case demonstrates that, whilst it will be possible to conclude the vast majority of care cases within 26 weeks, as proposed by the modernisation reforms, there will still be a small minority of cases, exceptional cases, where the investigation takes longer. In this case, the further testing proposed by Professor Pope which led to a series of adjournments was unquestionably necessary. Judges must be vigilant to identify those rare cases which require longer time. It is, of course, important that these cases are identified as soon as possible at the outset of proceedings and that any delay is kept to a minimum.

Finally, this case demonstrates again the crucial role played by the specialist family bar and solicitors. The role played by all of the representatives for all of the parties in this case has been of the utmost importance. All judges are very concerned at the prospect of an increase in self-represented litigants and the consequences for the family justice system. Not enough recognition is given to the contribution to the family justice system made by family lawyers.

The High Sheriff of Devon sat in for one morning of this hearing, as it happened during the evidence of Mr Richards, and afterwards expressed to me his astonishment at the level of specialist knowledge required of counsel, in this instance, Mr Storey, entrusted with the task of cross-examining the expert. This is one small illustration of the indispensable contribution made by family lawyers in this type of case. Without that contribution, it would be impossible to ensure that justice is done."
Let us hope that those who are responsible for the 'modernisation' of the family justice system, and (less likely) those responsible for the emasculation of legal aid, are listening.

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