Desperate parents are persuading less senior judges to transfer Court of Protection cases higher to force public authorities to act - a practice that the former president of the family division finds 'deeply troubling'.
Sir James Munby, who stepped down as family law chief in July, was unable to attend last week's Legal Action Group community care law conference, where he was due to give a speech highlighting current problems from the front line. However, the Gazette has seen his speech, in which he raises the question of how far a judge can go to persuade a public body to provide certain services or make resources available.
Munby says the family court is charged with the duty of furthering the child's welfare, as is the Court of Protection with adults who lack capacity, but they are denied the tools to do so. There are serious shortages in relation to secure accommodation and mental health services needed by increasing numbers of 'disturbed, sometimes very disturbed' adolescents. There are also cases in which young and gravely disabled children living at home need medical and social care, and suitable accommodation, thus engaging the responsibilities of the clinical commissioning group, and local and housing authorities.
Munby says his own experiences do not extend to such cases, but suspects similar issues arise frequently in the Court of Protection.
He says: 'Recent experience suggests that, in relation to children, such cases are being transferred "up", to judges of the family division, or even to the president, because of a belief that "senior" judges have more "clout" and are thus more likely to be able to "persuade" public authorities to do what is said to be the "right thing". One can understand what motivates desperate parents to propose, and less senior judges to agree, to such transfers, but I have to say that I find the practice deeply troubling. Acceptable "persuasion", if pushed too far or prolonged too long, can all to easily shade into unacceptable "compulsion".'
Munby references his 2017 judgment in Re X (A Child), a case in which he warned society could be left with 'blood on our hands'.
Munby says Re X was an 'extreme' case, in which he was confronted with expert evidence establishing a very high risk of successful suicide if suitable clinical provision was not found quickly. 'That provision was in fact found, but at what cost, perhaps, to some other child whose case was not before me and of whom I could know nothing?' he asks. 'But what is one supposed to do? What is the alternative? Wash one's hands and wait for an inquest, followed by much hand wringing, "we have all learnt lessons", it will not happen again"? I think not. There are occasions, and surely Re X was one where... a judge in a family court or in the Court of Protection is duty bound to act even if the prime responsibility lies elsewhere. I am unrepentant.'
The former president predicts relevant public authority budgets will remain under 'relentlessly heavy pressure' for a while. His speech concludes: 'Child care and adult social care services are both under intolerable, and, one fears, unsustainable, pressure, essentially the product of ever increasing demand at a time of (at best) static and (in reality) declining resources. But I had better say no more - to go further would be to enter the realm of politics into which not even a retired judge should venture.'
Steve Hynes, direction of Legal Action Group, told the Gazette he hoped the prime minister's 'bold statement' about the end of austerity in her speech at this year's Conservative Party Conference 'is backed-up by action in the budget later this month. Investment is needed in public services or the judges will increasing be caught between the rock of the law and the political hard plate of budgets cut to the bone by austerity measures'.