The need for 'judicial continuity

N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, which was handed down on ?2 November 2015, is a fascinating care case dealing with topical issues such as jurisdiction in adoption cases with a foreign element and ?the possibility of a ‘limping adoption’. But the president of the Family Division, Sir James Munby, in his detailed and wide-ranging judgment, also referred to other important issues.

The children in this case had been in foster care since May 2013 and the proceedings only began in January 2014. Section 20 of the Children Act 1989 addresses the provision of accommodation for children ?by a local authority where their parents agree. In his judgment, Munby P indicated that ‘section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.’ 

As Mr Justice Keehan pointed out in Northamptonshire County Council v AS and others [2015] EWHC 199 (Fam), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard their interests, and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay.

There are, of course, also problems with the parents’ agreement, especially if there are concerns about capacity or ?if the parents are not fluent in English.

Judicial capacity

Not surprisingly, since this ?case was handed down a huge number of new care cases have been issued, and we have certainly experienced that here in Bristol. This raises the issue of judicial capacity.

In his judgment in N, the president referred to judicial continuity. In that case, there had been seven hearings in the Family Division, listed before seven different judges. 

Munby P stated: ‘This is wholly unacceptable. Judicial continuity is a core part of the Public Law Outline [PLO], not least because, without it, that other key part of the PLO, robust judicial case management, is compromised. This court ?would rightly not tolerate such disregard of the PLO in a case being heard in the family court by district or circuit judges… Acknowledging my own responsibility as president for having allowed such practices to occur, it is time to put a stop to it, and I shall.’

I absolutely agree with him on the issue of judicial continuity. My experience is that if parents come across the same judge, and that judge is courteous, polite, and fair to them, they will often understand what is in the best interests of their child or children and may agree to resolve matters at the issues resolution hearing.

26-week time limit

But there is a problem. Many more cases are being issued, ?but there are no more judges, ?so judges will be taking on even more cases. Will they be able to resolve matters within the 26-week limit on the length ?of cases? Although at the case management hearing (CMH) ?I endeavour to ensure a final hearing is listed within the 26 weeks, if I am hearing several CMHs in one week and I am already booked up for final hearings, what can I do? Do I move the matter to another judge? That would mean there was no judicial continuity. 

The vital question is: which ?is more important? Judicial continuity is not just about the parents; above all, it is about the child. You become familiar with the child, get to know the views of their guardian, and from time to time you see them. You may just go over the 26 weeks but, ?in my view, judicial continuity ?is definitely the most important aspect.

District Judge Julie Exton sits at Bristol Civil and Family Justice Centre and is president of the Association of Her Majesty’s District Judges