Giving a clear and simple judgment: how hard can it be?

Posted on 16th Sep 2016 in Case Comment

Newspaper reports of a judgment released this week have concentrated on the use, by the judge, of an emoji – probably a first in the Senior Courts. But the judgment is far more interesting for the way the judge, Mr Justice Peter Jackson, has written it so that the children caught up in a family case will be able to read and understand it – without any loss of legal clarity and efficacy.

The judgment in Lancashire County Council v M and others [2016] EWFC 9 was given on 4 February 2016 but it was only released for publication on 13 September 2016. It comes with a “rubric” at the top, warning of a reporting restriction, imposed in January 2016 and varied in May, whose terms are set out before the judgment itself. Basically it forbids any publication of information about the proceedings which names or could help identify the four children or their mother or the father of two of them (Mr B) or their relationship with the father of the other two (Mr A) although he may be named, and has been the subject of criminal proceedings (which helps explain the delay in publication).

Summary

The judgment explains who everyone is and gives a brief bit of background history before continuing:

5. Unfortunately, there have been some serious problems, ending up with the children being taken away and Mr A being arrested and kept in prison.
6. Children can’t be taken away from their parents unless social services prove to a judge that it would be harmful for them to live at home. If children are taken away, judges will always try to return them if that is safe.
7. Another thing is that children are not taken away from their parents simply because the parents have lied about something. Even if they do tell lies they can still be good enough parents.
8. People can tell lies about some things and still tell the truth about other things.

9. Also, children are not taken away because parents are rude or difficult or because they have strange views, even if those views offend people. The only reason to take children away is because they need protecting from harm.

The difficulty is Mr A, whom the social worker (K) and guardian (M) think the children should not be seeing. Mr A “says that people are out to get him because of his religion” but the judge does not agree:

14. After thinking carefully about this and listening to everyone, I do not agree with Mr A at all. People are not out to get him. His problems are his own fault. I do not know why he was trying to buy guns and whether he is dangerous to everyone. The jury will decide about that. What I am clear about is that he is dangerous to the children and their mother because of the way he behaves and because the mother is not able to stop him. There is a good side to Mr A – everyone has a good side – and this makes it hard for H and A and their mother to see what he is really like.

15. One reason why the problems have become so serious is that the mother and Mr A are so different. The mother is a quiet and peaceful person. She would like a happy home and for the children to do well at school. She wants to be loved. She is not interested in politics or religion and does not know much about what goes on in the world. She is not at all curious and often finds things hard to understand. In a day-to-day way she is a good mother and she certainly loves her children very much.

Though this passage makes clear that she is probably not very bright, the mother is not above criticism. She has been “weak and foolish” in allowing her “feelings for Mr A to blind her to what he is really like”. But the problems really started after Mr A converted to Islam. Among other issues, including his “extreme views”, was the “risk of Mr A taking the children to live outside England”. In view of these problems, “the children definitely needed to be removed for their own protection”. (At the time of the judgment they were living with foster carers.)

The judge goes on to describe the children’s problems at school (frequently changing schools and being behind and unsettled); Mr A’s behaviour (aggressive, complaining about and threatening teachers, etc); and Mr A’s extreme views (bigotry, persecution mania, disagreements with all his local mosques and hatred for this country).

It turns out Mr A was secretly recorded by the police, and this showed his true nature, and “how he hides it from the mother and the children”: At para 26(12):

In the recordings, Mr A says that that he would sacrifice his life for his religion. He shows his hatred for this country because we are unbelievers who do not live under sharia law. He says that Islam is against democracy and voting. He pulled down posters encouraging people to vote that had been put up in one of the mosques. He wants Britain to be a Muslim country. He wants Muslims to be above non-Muslims. He wants men to be above women. He hates gay people. He says that Mr B is not fit to be a father because he has used drugs.

Finally, it turns out Mr A wanted to go to Syria. He was stopped when he tried to go on his own. He then arranged for the family to go to Paris (by bus, to avoid being stopped again), and from there to Morocco, and then to Turkey. The mother and children thought they were going on holiday and would be visiting EuroDisney. The police seem to think the mother knew what was really going on but the judge disagreed. This was the point at which the emoji 😊 came into play, at para 27(13):

The mother left a message in the caravan for the father’s sister, who I will call the aunt. It told her how to look after the family’s pets. The message said that the family would be back on 3 August. It has a 😊 beside the date. After the family left, the police searched the caravan. They found the message and say that the 😊 is winking, meaning that the mother knew they wouldn’t be coming back. I don’t agree that the 😊 is winking. It is just a 😊. The police are wrong about that, and anyhow they didn’t find anything else when they searched the caravan.

It was only when they got off the bus in Paris that Mr A told them they would be going to Morocco and Turkey. “It seems peculiar that a grown-up person would be so naive and trusting about holiday arrangements, but that is what the mother is like”, says the judge.

They didn’t go to EuroDisney as expected. They didn’t even see the Eiffel Tower, which Mr A told the judge was “a lump of scrap metal”. Although there wasn’t enough information for the judge to conclude that Mr A definitely wanted to take them all to Syria, after they were all sent back from Turkey in response to an emergency court order obtained by social workers, Mr A was arrested trying to buy guns and ammunition. “He has been in prison since then and if the jury finds him guilty, he will be in prison for a long time.”

After commenting on the way Mr A gave evidence and how he only felt sorry for himself and was “more interested in making speeches than answering questions”, the judge concludes, at para 27(42):

It is lucky that Mr A was arrested so that he was not able to go on with his plans to take the children out of England. That is why it is not safe for him to be in the children’s lives.

The judgment concludes with a post-script in which it records the making of care orders for the children to live with their mother and grandmother, for the elder two children to have contact with their father, Mr B, and for the younger two to have limited indirect contact with Mr A. However, in May Mr A was convicted of firearms offences and in July he was sentenced to imprisonment for 18 years.

Observations

The judgment is a model of clarity and leaves out nothing which even a Latin-spouting lawyer of the old school would need to know about the proceedings, though to be fair there is no citation of statute, case law or commentary (even in the bit where he takes the professionals to task for the inaccurate and exaggerated information relied on in the emergency return order application). Perhaps the formal order records the statutory underpinning (presumably section 38 of the Children Act 1989.)

Moreover, this is a family judgment involving fairly simple legal concepts. Though Lord Sumption says family law is not a remote island where they do things differently, the fact is that a judgment about intellectual property rights or constructive trusts or promissory estoppel might well require a bit more long-wordy stuff.

Nor is this the first time a judge has written a judgment in terms intended to be read by the children it affects, though previously such an approach has anticipated the children having grown up a bit more before tackling a public document about their domestic arrangements. The extent to which children involved in cases like this are aware of the details of a judgment being made public has been the subject of research by Dr Julia Brophy.

The judgment has been widely welcomed by legal commentators. Lucy Reed on her Pink Tape blog notes that “Mr Justice Peter Jackson has broken twitter” with all the activity it generated. But she made the more important point that, although it might look easy, “It is very hard and very time consuming to write this way”, citing her own experience in writing for non-legal readership of her book, Family Court without a Lawyer.

At the end of each phrase, I ask – is there a cleaner way of saying that? A way that is less likely to inadvertently confuse? There usually is. It is a skill and a discipline that can be learnt and it is not only judges who should practice it, but we lawyers should do so as well.”

Amidst the general excitement, some reports of the case seem to have got the wrong end of the stick. The Daily Telegraph seemed to imply that the judge had used the emoji at least in part “to make a judgment in a family court case comprehensible even for the children it affects”, while in the next paragraph more ambiguously saying it was incorporated “to explain a point of evidence”.  A report on Legal Cheek went further in its headlline, saying “High Court judge uses emojis to help children understand family law judgment”, and asserts in the report that “the emojis (unfortunately) don’t appear in the online version of the judgment.” which is not the case: they do appear in the “Printable RTF version” on BAILII, which is the official version that should be used in court, not the HTML dynamic version visible in your web browser.

It is unfortunate that no official version has yet appeared on the Judiciary website. It should be used as a teaching aid for new judges.

Case comment by Paul Magrath, Head of Product Development and Online Content, ICLR.