EDUCATION AND TRAINING

We will keep you informed about training events which may be hosted by the FJB or other organisations, and will make educational material available on this page.

Re BR (Proof of Facts) [2015] EWFC 41 – an examination by Jackson J of the proof of facts; a child’s likely pain response and an analysis of generic risk factors and protective measures in alleged NAI cases

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The case of Re BR (Proof of Facts) [2015] EWFC 41 follows a fact-finding hearing held in private concerning a baby who sustained a very large number of fractures. The specific details of the fact-finding hearing do not form part of this judgment, nevertheless, the Honourable Mr Justice Peter Jackson makes a number of observations arising from issues raised during the course of that fact-finding hearing.

 

Jackson J addresses the followings issues in this judgment, namely the:

 

“(1) Proof of facts;

 

(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015); and

 

(3) An analysis of generic risk factors and protective factors.”

 

i. Proof of Facts

 

Jackson J provides a helpful overview of the standard of proof, namely the balance of probabilities; and emphasises that the burden rests upon the person asserting that particular fact. He comments that the “court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.”

 

ii. Evidence about a child’s likely pain response – Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015)

 

Jackson J considered the judgment of HHJ Bellamy in the matter of Re FM following reference to this case by the respondent parents, in particular paragraph 115 of that judgment. Jackson J quotes this paragraph and notes at paras 15-17 of his judgment the following:

 

“[15] Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.

 

[16] Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.

 

[17] In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.”

 

iii. Risk Factors and Protective Factors

 

Within his judgment Jackson J acknowledged that a helpful framework had been provided on behalf of the Children’s Guardian, following an analysis of information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals, of possible risk and protective factors that may assist the court when considering cases of this nature.

 

(For a further review of Re FM and its full judgment click here.)

 

 

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Updated Guidance on the Role of the Attorney General in Appointing Advocates to the Court or Special Advocates in Family Cases

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Please find attached the Updated Guidance on the Role of the Attorney General in Appointing Advocates to the Court or Special Advocates in Family Cases.

 

The Guidance has been issued by the President of the Family Division and updates the guidance circulated by Mr Justice Holman, when he was Acting President, on 21 November 2012.

 

 

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Cases on threshold should be supported by facts – the impact of Re J (A Child) and Re A (A Child)

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The Court of Appeal has recently determined the appeal of a mother against a care and placement order regarding her 8 month old son in the case of Re J (A Child)  [2015] EWCA Civ 222. The parents disputed some of the matters relevant to the threshold criteria and argued at the appeal that the analysis and evaluation of the local authority’s plan by the judge was not adequate. The appeal was allowed and the case was remitted to be heard by a different judge.

 

In his judgment Lord Justice McFarlane stated that the judgment in the first instance family court was “by a wide margin, wholly inadequate.

 

Lord Justice McFarlane also summarised and endorsed the matters highlighted by Sir James Munby in his judgment in Re A (A Child) [2015] EWFC 11.  In that case the President of the Family Division stated:

 

The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, fact A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z.

 

 

 

 

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Practice Direction: Committal for Contempt of Court – Open Court

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Please find attached the Practice Direction: Committal for Contempt of Court – Open Court dated 26th March 2015 for your reference. It provides very useful direction regarding the appropriate procedures for committal proceedings in open court; in private; and the delivery of the court’s judgment in such cases.

 

The Practice Direction applies to all proceedings for committal for contempt of court, including contempt in the face of the court, whether arising under any statutory or inherent jurisdiction and, particularly, supplements the provisions relating to contempt of court in the Civil Procedure Rules 1998, the Family Procedure Rules 2010, the Court of Protection Rules 2007, and the Criminal Procedure Rules 2014 and any related Practice Directions supplementing those various provisions.

 

The Practice Direction applies in all courts in England and Wales, including the Court of Protection, and supersedes the Practice Guidance: Committal for Contempt [2013] 1 WLR 1326, dated 3 May 2013; Practice Guidance (Committal Proceedings: Open Court) (No. 2) [2013] 1 WLR 1753, dated 4 June 2013; and President’s Circular: Committals Family Court Practice 2024 at 2976, dated 2 August 2013.

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Free CPD Seminar – Expert Fees and Mediation: Direct Guidance from the LAA

  |   Education & Training, Events, Latest News

The LLFJB Education and Training Sub-Committee are pleased to announce a free seminar on the crucial subject of the forthcoming LAA regulations on Expert Costs and Mediation.

 

The seminar will take place 26th February from 5.00pm to 6.30pm [prompt start essential] at Leicester Town Hall, and is expected to give 1.5CPD points.

 

Eleanor Drucker of the Legal Aid Agency has agreed to come and deliver the seminar.

 

Please see the attached poster for full details – and please use the attached booking form.

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