Advocates and their duties to the court

A Local Authority v B (Children) [2017] EWCA Civ 1635

This is a useful case for all advocates, not just those involved in children’s law, where the lesson to be learned is that you must steadfastly stand up for your case, even if you consider the Judge is against you!

In this care case the Judge had to decide in respect of the youngest child in the proceedings whether it was in her best interests to be adopted or placed with her paternal grandmother. The grandmother gave her evidence first, having only been shown the court’s findings of the concerns in the case that morning and without professional advice.

The judge indicated at the start of the day’s hearing that he would listen to the grandmother’s evidence in full, including cross-examination by the local authority and the guardian. He said that the guardian had not been invited to cross-examine, but, equally, at no stage did the child’s advocate interject and insist upon putting the guardian’s case to the grandmother or putting it to the judge.

The Local authority appealed the final decision in respect of the youngest child with the support of the Guardian on the basis of the overall fairness of the hearing for the younger child. The appeal was successful.

Interesting for advocates were Lord Justice McFarlane LJ’s comments in the appeal judgment:

Para 23 “Whilst I understand the submission that is made which is that in the outcome the process may have failed to hear what might have been said on behalf of the child during the course of this particular hearing, if criticism is to be made it should not all focus upon the judge. Sometimes hearings in cases, no matter what area of the jurisdiction that we may be concerned with, are difficult. Advocates encounter judges who they perceive are not ‘with them’ and may be stoically against them. Part of the role of the advocate is to stand up for their case and make sure, even if the judge is against them, that their case is put properly before the court and is there to be taken in to consideration by the judge.”

Deborah Piccos

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