England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2014

Mr Justice Keehan:

Introduction

1. On 31 July 2013 LK died. She had been stabbed to death. She had a young child, HL, who was born on 28.09.10 and is 3 years of age. These care proceedings concern her future welfare. On that day her father, DG, was arrested in relation to the death of the mother: he was subsequently charged with her murder and remanded in custody. The Crown assert that HL was present when her mother was killed.
2. The father is to stand trial for the murder of the mother at the Central Criminal Court. The trial is fixed to commence on 22 April 2014.
3. On 15 August 2013 the local authority issued care proceedings in respect of HL. She has since been the subject of interim care orders and lives with foster carers.
4. The findings of fact sought by the local authority in satisfaction of the threshold criteria of s.31(2) of the Children Act 1989 reflect the case presented by the Crown, namely that the father killed the mother and that he had been violent to her on numerous occasions over the past three years.
5. Case management directions have been given on a number of occasions over the last four months. This judgment is being given (a) to highlight the wholesale failure of the parties to these proceedings to comply with those directions and (b) to deal with an important aspect of the interplay between public law care proceedings and concurrent linked criminal proceedings.

Compliance with Case Management Directions

6. In Re W (A Child) [2013] EWCA Civ 1177, Munby P. observed, at paragraphs 50-54:

"It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child)[2013] EWCA Civ 1227, para 74. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void."

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence. … A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work.…. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority."

7. I, respectfully, agree.
8. On 23 September 2013 HHJ Wallwork, sitting as a High Court Judge, made a number of directions but in particular the following case management directions:

a. the solicitor for the children's guardian was to file and serve an expert report by Dr. Jones by 4pm on 13.11.13;

b. the father was to file and serve a response to threshold "dealing expressly with each pleaded fact" by 4pm on 28.10.13;

c. the father was to file and serve a report on his mental health by 4pm on 11.10.13;

d. the local authority was to file and serve divers assessments on family members by 4pm on 06.11.13;

e. the local authority was to file and serve its final evidence and a care plan by 4pm on 27.11.13.

9. There was the usual recital at the end of this order, in the standard form of Case Management Order no. 3, namely:

" COMPLIANCE WITH DIRECTIONS

All parties must immediately inform the Court/Court Officer if any party or person fails to comply with any part of this order".

10. The parties did not comply with those directions. No party made an application to extend the time for compliance with those directions before the expiration of the dates set out in the order. No party notified the court of the non-compliance with those case management directions nor sought an urgent directions hearing.
11. On 21 November 2013 the matter came before Cobb J. when, at the request of the parties and by consent, he made the following directions:

a. the time for filing and serving the report of Dr. Jones was extended to 29.11.13;

b. the time for the father to file and serve his response to threshold was extended to 28.11.13;

c. the time for the father to file and serve a mental health report was extended to 28.11.13; and

d. the time for the local authority to file and serve the family assessments of IK and of KFK & LW was extended to 27.11.13 and in respect of AQR and SA it was extended to 29.11.13.

12. The parties invited the court to discharge the direction for the local authority to file and serve its final evidence and a care plan by 27.11.13. Cobb J. declined to do so. The local authority did not comply with that direction.
13. It is to be noted that the extension of time sought was, at most, no more than 8 days after that hearing. Subsequent to that order AQR withdrew from the assessment process.
14. Save that the local authority filed the assessment of SA on 27.11.13 and filed the assessment of IK out of time on 29.11.13, the parties did not comply with those directions. No party made an application to extend the time for compliance with those directions before the expiration of the dates set out in the order. No party notified the court of the non-compliance with those case management directions nor sought an urgent directions hearing.
15. The matter came before Mostyn J. on 5 December. For reasons which are not clear the solicitors for the father and for the children's guardian did not receive notice of the hearing and so did not attend. The matter was adjourned to 16 December when the matter came before me.
16. On 16 December I directed the solicitors for the local authority, the father and the children's guardian to explain the serial failures to comply with the orders. I received letters from each of the solicitors: they offered various explanations – some good and some indifferent. What was a cause of real concern to me, however, was the omission of any explanation as to why an application had not been made to extend the time for compliance before the expiration of the date in the order or any explanation of the failure to notify the court of non-compliance by that party and/or by the other parties.
17. As the President observed in Re W (above) "the deeply rooted culture of the family courts" of failing to comply with court orders and case management directions will no longer be tolerated.
18. I gave the parties further extensions of time to comply with the previous case management directions referred to above. Save for the father's response to threshold, which I deal with below, those directions, insofar as the time for compliance has passed, have been obeyed.

Concurrent Public Law and Criminal Proceedings

19. In October 2013 a Protocol and Good Practice Model was issued by the President of the Family Division, the Senior Presiding Judge and the Director of Public Prosecutions. It came into force on 1 January 2014. It provides comprehensive guidance on the procedures to be followed when there are linked care proceedings and criminal proceedings especially in relation to applications for disclosure between the two sets of proceedings.
20. In this matter directions were made for the police to disclose documents relating to the criminal case against the father to the local authority. To date, the police have not sought disclosure of any statements or documents filed and served in these proceedings.
21. A party to care proceedings is not excused from giving evidence on the ground of self-incrimination. By s.98 of the Children Act 1989:

(1) In any proceedings in which a court is hearing an application for an order under Part IV or V, no person shall be excused from–

(a) giving evidence on any matter; or

(b) answering any question put to him in the course of his giving evidence,

on the ground that doing so might incriminate him or his spouse of an offence.

(2) A statement or admission made in such proceedings shall not be admissible in evidence against the person making it or his spouse in proceedings for an offence other than perjury.

22. The meaning and effect of that provision were considered by Munby J., as he then was, in Re X (Children) [2008] 1 FLR 589, at paragraphs 48 - 51 and in Re X (Disclosure for Purposes of Criminal Proceedings) [2008] 2 FLR 944, at paragraphs 33-35 and 60-65.
23. In Re X (Children) he said, at paragraphs 49-51,

"In the first place, section 98(2) gives protection only against the use of such statement or admission "in evidence." It does not, for example, protect against use in a police inquiry into the commission of an offence: see In re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76 at page 85. So it does not, in my judgment, protect the Defendant from disclosure of the documents to the CPS in the manner and for the purpose that is here contemplated. Moreover, given the limitations and conditions upon the use of the documents (and the information contained in them) imposed by my order, the documents cannot be used against the Defendant in open court without the prior sanction of the family court. Given that the Crown Court sits in public, it is therefore difficult to see how they can be used "in evidence" against him without a further order of the family court having first been obtained. Furthermore, the order which I propose to make specifically confines the use of the documents to the present criminal proceedings, so they cannot be used by the CPS for any purpose in connection with any future criminal proceedings. Secondly, it is to be noted that putting inconsistent statements to a witness in order to challenge his evidence or attack his credibility does not amount to using those statements "against" him within the meaning of the section: Kent County Council v K [1994] 1 WLR 912 at page 916 followed in Re L (Care: Confidentiality) [1999] 1 FLR 165 at page 167. Thirdly, and finally, it is of course ultimately for the judge in the Crown Court who is conducting the criminal proceedings, and not for the judge in the family court who is conducting the family proceedings, to decide whether or not and to what extent section 98(2) applies in any particular situation. And in this connection, as Johnson J pointed out in Re L (Care: Confidentiality) [1999] 1 FLR 165 at page 168, "It would clearly be wrong for a judge hearing care proceedings to make any order that might be thought to trespass on the jurisdiction of the judge conducting the criminal trial."

24. The father has failed to comply with three orders directing him to file and serve a comprehensive response to the local authority's threshold document. On 16 December 2013 I was told by counsel representing the father that those representing him in the criminal proceedings had advised the father not to file or serve a comprehensive response to threshold until the defence statement had been served in the criminal proceedings. I made it plain that that course was wholly unacceptable especially in light of the provisions of s.98 of the 1989 Act.
25. Given my concern about that explanation I required the solicitor having conduct of the father's criminal proceedings to attend at the hearing before me held on 15 January 2014.
26. On 16 December, after the conclusion of hearing before me, counsel for the father helpfully took detailed instructions from the father. As a result of a misunderstanding I received a copy of the draft Response to Threshold which was later sent by the father's team to all the other parties. A reasonably detailed description was given by the father of his account of the events of 31 July 2013. It included an account of the father admitting "holding a knife and the knife being covered with blood" at the family home albeit he claimed he could not "recall seeing the mother injured or of stabbing her".
27. Thereafter the father withdrew his instructions for that document to be filed or served. The version of the threshold response which was filed and served on 18 December 2013 did not contain any account of the events leading to the mother's stabbing and death. It was replaced by an anodyne statement that "on advice of the Respondent's criminal defence team Mr G has been advised not to respond to this fact yet, until he has prepared his criminal defence statement".
28. In a position statement filed on behalf of the father dated 19 December it was submitted that "He seeks until after 21 January 2014 to finalise his threshold document, by which time his defence statement will be concluded. A threshold document responding to all matters save the circumstances of the mother's death was filed and served on 18^th December 2013".
29. At the hearing on 19 December I indicated that I was minded to order the father's solicitor to file and serve the original version of the father's response to threshold, notwithstanding the father had withdrawn his instructions to do so. Counsel for the father submitted that to take that course may prejudice the father's case in the criminal proceedings but without speaking to the solicitor or counsel representing the father, she could not be more specific. It was with very considerable reluctance that I did not make that order but adjourned the issue off until today when I expected to receive a detailed explanation of the alleged prejudice the father would suffer.
30. The father was not produced at court for this hearing notwithstanding that a production order had been issued to the relevant prison authorities. Various attempts were made to enable the father to join the hearing by video link but all attempts were unsuccessful. Ms Branson for the father was unable to take his specific instructions on the directions I was invited to make. Therefore, I gave permission for Ms Branson to make any further submissions in writing once the father's instructions has been obtained but, in any event, by no later than 4pm on 17 January 2014.
31. Mr. Easteal, junior counsel for the father in the criminal proceedings, very helpfully attended this hearing with Ms Jackson of Kaim Todner, the solicitor having conduct of the father's criminal proceedings, and Ms Todner, the managing director of that firm of solicitors.
32. He explained that on a number of occasions prior to 16 December Ms Jackson had given advice to the father in general terms about being careful about what he said to others about the events of 31 July 2013 and to limit what he said but that advice was not given specifically in relation to these care proceedings. The father made contact with Ms Jackson by telephone in the late afternoon or early evening of 16 December after he had given detailed instructions on the threshold document to Ms Branson. It was on that occasion that Ms Jackson gave the advice which was set out in the father's response to threshold dated 18 December, namely "on advice of the Respondent's criminal defence team Mr G has been advised not to respond to this fact [that is the finding sought that he killed the mother] yet, until he has prepared his criminal defence statement".
33. Ms Jackson says that when she gave that advice she did not know that the father had given a reasonably detailed account of the events of 31 July 2013 that afternoon to Ms Branson. Without reservation I accept Ms Jackson's account. The effect of that advice, however, was to lead the father to withdraw his instructions for that account to appear in his response to threshold.
34. Mr. Easteal told me he took full responsibility for the advice Ms Jackson had given to the father at various times. He told me that Ms Jackson consulted with him and sought his advice before speaking to the father.
35. He further explained that that advice was generally given to defendants who were parties to linked care proceedings. It was given out of an abundance of caution to avoid a response to threshold being filed and served which was inconsistent with the criminal defence statement which might then be disclosed to the police and the Crown Prosecution Service for use in the criminal proceedings.
36. Mr. Easteal and Ms Jackson readily agreed with my observation that the advice given to the father was wholly wrong and inappropriate. Mr Easteal explained that the advice was given because (a) it was general practice in criminal proceedings where there were linked care proceedings and (b) there was a lack of guidance in this area. He accepted the broad outline of the guidance which I indicated I was minded to include in this judgment and told me that clear guidance would be welcomed by practitioners.
37. For the avoidance of doubt, I wish to make it clear that I accept that Mr. Easteal and Ms Jackson acted at all times in good faith and in what they believed to be in the best interests of their lay client in accordance with their respective professional obligations. I accept that they adopted a practice which is commonly followed by criminal practitioners and did so in the absence of any clear guidance. I am most grateful to both of them, and Ms Todner, for attending this hearing and for the assistance they gave to me.
38. I gave all parties, including the father's criminal team, leave to file any written submissions on the guidance I proposed to give by no later than 4pm 17 January 2014.
39. On the issue of whether I should order the father's solicitors in these proceedings to file and serve the original response to threshold which had been prepared on 16 December, Mr. Easteal was clear in his submissions. He told me the father would not suffer any prejudice in the criminal proceedings if I made that order. Further, he submitted that there was no basis upon which he, on behalf the father's criminal team, could resist such an order.
40. Accordingly, I ordered the original version of the document to be filed and served and to stand as the father's response to the threshold subject to any written submissions received from Ms Branson on the issue. A copy of that document was filed at court on 16 January 2014 by email. In the accompanying email the solicitor for the father confirmed that the father had given instructions for that document to be filed and served.

Guidance

41. The interplay between linked care proceedings and criminal proceedings was considered extensively by Wall LJ, as he then was, in Re W (Care Order: Sexual Abuse) [2009] 2 FLR 1106 and by Judge LJ, as he then was, in R v. L [2006] EWCA Crim 1902, [2006] 1 WLR 3092. The guidance I propose to give is intended to complement the guidance given and observations on best practice made in Re W and R v. L.
42. I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

a. when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

b. the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

c. a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

d. it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

e. It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

f. the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court's determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

g. the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

h. nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, sub nom Re EC (Disclosure of Material) [1996] 2 FLR 725.

Conclusion

43. The conduct of the parties in this matter and the wholesale failure to comply with case management directions is lamentable. Family practitioners must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply timeously with court orders. Those failures simply lead to unacceptable delays in the proceedings which are wholly inimical to the welfare of the children involved.
44. The fact that a party who is a defendant in linked criminal proceedings has not yet filed a criminal defence statement is no reason for the court to delay requiring that party to provide a full and comprehensive account in a response to threshold and/or a narrative statement. Furthermore, it is wholly inappropriate for those representing that party in criminal proceedings to advise him not to comply with the order in the care proceedings or to advise him not to respond to a particular issue or allegation, whether until the criminal defence statement has been filed or at all.