Justice Pauffley doesn’t always get it right, but we’re excited to see judges disrupting outdated and unhelpful child welfare mantras in order to place the best interests of children first. And that is exactly what this judge did when she overturned an adoption order recently.

Overturning an adoption order is fiendishly difficult and frowned upon, both in law and policy. The idea is that a child needs permanence in order to flourish and that sentiment tends to override every other consideration – sometimes at the expense of the very thing it deigns to protect: the child.

The fate of the Webster family and their children has become folklore in Family circles – evidence proving that they had not harmed their children was set aside, because ‘policy’ decreed that adoption orders were final. You can understand that kind of overly simplistic thinking taking place in the 1900’s, but not in the 21st century: we now know that children need more than just a place to call home and familiar faces to develop into healthy, happy adults.

In this case, which Justice Pauffley describes as ‘highly exceptional’ (aren’t they all, or is this statement just self-defence in a world where challenging norms is a dangerous pastime?) a 14-year-old girl was allowed to return to her biological family after being adopted and then subsequently abandoned by her adoptive parents, who sent her to live with extended family, where she was badly abused. The adoption order, which was made more than ten years ago, has now been overturned.

What is even more startling about this case is that the biological family have now been deemed fit to care for her – no background is given as to the circumstances in which she was removed in the first place, nor whether the original assessment which saw the young girl being taken into care and adopted, was accurate.

However, for going against the grain, and showing absolute courage, Mrs Justice Pauffley is our Judge of the Week.

You can read the released judgment which has been made public, here. 

Mrs Justice Pauffley

Being a judge in the family courts today requires a solid grasp of the law, but being a consummate diplomat helps too. And when that is combined with fairness and careful thought, you have a gem of a judge.

At the end of last month, Hayden J gave a judgment on a troubling case. A mother, who was considered to be vulnerable, was expecting her ninth child (the previous eight had been taken into care), and both she and her partner, also a vulnerable adult, desperately wanted to have a child of their own to love and take care of.

The Local Authority, panicked by the intention and the fact that during the previous birth the mother had hidden herself away and gone into labour at home where she delivered her twins, sought something called ‘anticipatory declaratory relief’. This type of application allows the local authority to make provisions for a child before they are born.

The argument by the local authority, despite reports by medical and psychiatric professionals assigned to the case which all emphatically showed to the contrary, was that mum did not have capacity to understand crucial elements in relation to her circumstances. Specifically:

(1) Does she have the capacity to make decisions as to the contact she has with professionals?

(2) Does she have the capacity to make decisions in relation to the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction?

(3) Does she have the capacity to make decisions as to the treatment that she should receive following the birth of the baby?

It is not clear from the judgment why the local authority then changed its position, but the application to seek ‘anticipatory declaratory relief’, was then withdrawn by the local authority and it was at this point that Hayden J was asked to review that decision. Hayden J then subsequently allowed the application for relief to be withdrawn, satisfied that it was not necessary and that mum had capacity to understand the questions above.

Even more wonderful was Hayden’s consideration of the issue post birth. Despite the likelihood that this latest child would also eventually be taken into care, he called for a humane approach to the afterbirth, with support from professionals, to allow the child and mother to be together during what he calls “the mutual need each, for the other.”

Despite the local authority’s over-zealous actions, and on this Hayden J says, “Those instincts are laudable, but there is a paternalistic complexion to them,” the view was that the initial application was sincere. Hayden J’s sentiment below perhaps sums this up best:

“I’ve no doubt that the professional instincts here were sincere. However, equally, I’ve no doubt that they were, ultimately, misconceived.”

It’s a sensitive judgment, both to the family involved and the professionals assisting, and it reiterates the need to respect personal autonomy, which we think is crucial in a democratic society. So, for delivering a fair and sensitive judgment with deft application of the law and for employing a level of diplomacy to help keep the temperature down in an already heated arena, our judge of the week is Hayden, J.

Good on you, sir.

Whilst we take a dim view of some female judges in the lower courts, who seem miserable at their stations and intent on making everyone they oversee miserable too (family law practitioners I see you snickering, you know what we mean), the female judges who make it up the slippery ladder to the higher courts are a different breed altogether.

Mrs Justice Pauffley, a high court judge, has made some rather scathing statements of the family justice system, and so concerning is the state of affairs that even the President of the Family Division is weighing in on this lady’s recent judgement and reinforcing her findings. So, what’s all the fuss?

With more than just a little courage, Mrs Justice Pauffley has condemned the overt practice of social workers being too hasty in taking children from parents without proper evidence.

The High Court judge even goes so far as to say that judges and social workers have been conspiring to remove children unjustly from parents and goes on to condemn family court judges for taking part in what she is calling ‘clandestine arrangements’. Mrs Pauffley found that rulings by family judges were simply  ‘cut and pasted’ from recommendations emailed to the court by social workers.

Clandestine Arrangements

Mrs Justice Pauffley has noticed the practice of judges rubber stamping the wishes of social workers without even so much as checking the information they provide or examining it through a fair hearing. And whilst some may argue that judges rely on ‘experts’ to provide information and guide them on outcomes, the reports provided were never meant to be taken ‘as read’. That has become common practice in our courts and factors such as time pressures and resources are irrelevant here. Breaking procedure is simply not an option.

The case

Why is Mrs Justice Pauffley’s case so important? Other than her direct comment about foul play inside our system, which is an honest breath of fresh air in a system still largely deluded by its own size and pedigree – what’s left of it (think the banks and Too Big To Fail), she has in this ruling reunited a mother with her baby. This is almost unheard of. It takes an enormous amount of courage to make such an order.

Quotes from Mrs Justice Pauffley

What this judge is saying about the family courts and its current murky practices:

• “The practices I have described are not confined to this area but are widespread across the country”. (Yes, we know, we see it every day in our pro bono work)

• “It is difficult to view the justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their findings and reasons might comprise.”
• “Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”

Sir James Munby has backed the Order, which calls for the end of collusion between judges and social workers.

For her bravery and for reminding the system what law is really meant to be about, we make Mrs Justice Pauffley our judge of the week. Hats off to you, madam.

You can read the full transcript of her judgment, here.

More on Mrs Justice Pauffley:

• This lady gets parents to settle their disputes over a cup of tea – we like her style.
• She has been appointed the Senior Family Liaison judge in the past, in three separate districts.
• The Hon Dame Anna Pauffley DBE was called to the Bar, Middle Temple in 1979 and became a QC in 1995. She was appointed a Recorder in 1998 and became a Bencher in 2003. She was appointed a High Court Judge, of the Family Division, in October 2003 and has been a Family Division Liaison Judge on the South Eastern Circuit since March 2004

Mrs Justice Pauffley

Here at Researching Reform, we make no secret of the fact that we have double standards – when it comes to the relative responsibilities of professionals versus parents inside the family justice system. Professionals have a duty to carry out their work with competence, and parents and children going through the system rely on their expertise to navigate the process. That is why Sir James Munby’s latest statement on shoddy social work makes him our hero this week.

In a recent case, which Sir Munby, the President of the Family Division, presided, two social workers from Bristol failed to tell parents whose children were being adopted , why their children were being taken from them, despite a court order specifying this needed to be done (and what an indictment on the system that we even need such a court order in instances like these). 

To make matters worse, the parents did not find out the reasons for the removal of their children until 45 minutes before the adoption order, we presume, was due to be finalised, giving the parents no chance at all of mounting a challenge. For those of us who work inside the system on a daily basis, this scenario will not seem unusual – we cannot count the myriad times this sort of thing has happened to parents and children we assist as they go through the process. And it’s all part of the game that’s played in court – merely viewed as “strategy” most of the time, the culture inside the system has become so sick, that our very own President had to issue a court order, clearly, to enforce the correct procedures for the adoption process – social workers are required to tell parents why their children are being removed from them, in a timely fashion.

Sir Munby goes on to criticise the Bristol social workers in a searing attack, referring to their actions as, ‘deplorable’ and ‘symptomatic of a deeply rooted culture in family courts’. 

The President then went on to say that such action in future could lead to consequences for social workers, which has been interpreted by some to mean the possibility of imprisonment. 

For his continuous courage as he faces an uphill struggle to battle the inadequacies of the system, for his insight and understanding, and his willingness to understand the impact that poor practice has on families and parents, and for being resolute in eradicating incompetence and lethargy inside the family justice system,we make Sir James Munby, our Judge of the Week.

He has for a long time amongst his peers, cut a somewhat lonely figure in the debate surrounding increased transparency in the family courts, but as President of the Family Division, Sir James Munby is in arguably the most powerful position to make a meaningful impact. And as a very vocal and politically active member of the family justice system (and when we say political, we mean politics in its rightful place – open discussion about the performance of the family courts, and nothing else), Sir Munby continues to make waves.

The latest news tells us that our President has, post a case which he presided over where a council was trying to ban a father from publishing highly critical material about it social services department, re-iterated his view that more transparency is needed in the family courts to ensure a proper debate on the performance of bodies inside the system.

For this, and his continued efforts at creating the perfect balance between freedom of expression and child welfare concerns, we make Sir Justice Munby our judge of the week.

You’ve got guts, sir, and at Researching Reform, that’s applauded.

A judge this past week has handed down a decision which is not only heroic, but symbolic of what all good judicial practice should look like. 

In an article in the Daily Telegraph, we are told that Mr Justice Cobb (and we hope and assume very much that this is the one and the same Stephen Cobb QC who was recently appointed a high court judge), has prevented a local authority from taking away a child from their adoptive mother, who had recently gone blind.

The article tells us that the local authority had made only superficial enquiries, something that happens too often, and that no attempts had been made to give the adoptive mother assistance before trying to remove the child despite the continued efforts of the family to seek out such help, something, unfortunately, which happens far too frequently, also.

The piece in the Telegraph is a must-read. It’s been a long time since we’ve awarded anyone Judge of The Week, but Mr Justice Cobb is our Judge of the Week, for his bravery, common sense and compassion. We will look forward to reading more about the cases he works on in the future from what is sure to be a cutting-edge judge, blazing a trail in the right direction.

The judgment can be read here.

Stephen Cobb

UPDATE: Since the death of Ellie Butler, we have written a clarification, explaining the reasons behind the post below. We have also offered to remove this post if Ellie’s family would like us to. Researching Reform is shocked and saddened by Ellie’s passing, and our thoughts and prayers are with her family. 

In a recent case, which has since been made public and appears to publish the names not only of the parents, but the children involved, there are some extraordinary skills to be appreciated and welcomed.

Family law often finds itself at the cutting edge of medicine and medical conditions, due to the fact that there is still so much we don’t know and we can’t deduce, that only the greatest care and the finest consideration will do and we feel this case and the judge who dealt with it, delivered just that.

Mrs Justice Hogg found herself having to pour over detailed medical evidence and testimony in a case which saw a mother and father lose their child to the local authority over what was believed to be non accidental injuries. However, this was later disproved and happily for the parents and their daughter, they were reunited, but not before facing the threat of losing their newborn who came into the world during the proceedings concerning their first daughter.

It’s not everyday you see such meticulous care in the family court system, nor is it usual to come across such courage and clear headed thinking, but for all those attributes, we would like to award Mrs Justice Hogg our Judge of the Week.

And as always, the parents and children are the unsung heroes in a system which has not yet found a way to treat our families with the compassion they deserve.

Mrs Justice Hogg