Judges Are Paid To Express Opinions

Introduction

In a series of five harrowing judgments, the President of the Family Division, Sir James Munby, expressed his frustration with the system that endangered the life of a child who was the subject of care proceedings. He was forthright. Some of his words were quoted in the press. A headline in the Guardian read: ‘Judge warns of ‘blood on our hands’ if suicidal girl is forced out of secure care.’ ‘Why won’t NHS help?’ asked the Sun. ‘State will have ‘blood on its hands’ if suicidal teen doesn’t get hospital bed soon, top judge warns.’

While the judge’s comments seemed generally to be applauded by the media, not all were happy. Here is a typical example of a commentator who was not:

To use a rhetorical outburst in one case to make broader political points about the state of public services jeopardises the principle of judicial separation. In saying that there are occasions when doing right “includes speaking truth to power”, and openly condemning the lack of adequate public resources, is to leave the respected realm of judicial neutrality and to enter the political fray. Language and tone matter. Even if the diagnosis is fair, for a judge to use this tactic is, well, pretty ill-judged.’

I disagree with that commentator. He fails to understand the nature of the judicial process. But before continuing we need to know more about the case that was the context of the judge’s remarks.

The facts

X was nearly 17 years old at the time of the proceedings. She had been sentenced by the Youth Court to a Detention and Training Order, and was detained in a secure unit which was referred to in the proceedings as ZX. Her release was imminent. Because she was about to turn 18, there was a very narrow window in which the court could make a care order. She had made many determined attempts to kill herself. The staff at ZX thought that if she were released into the community she would certainly kill herself and/or someone else. But the court faced a problem: where could she go? There was nowhere obvious.

The judgments

The five judgments are here (no. 1), here (no. 2), here (no. 3), here (no. 4), and here (no. 5). They are all well worth reading.

In his second judgment the judge observed that:

‘If there is no effective, realistic and above all safe plan in place for X when she is released from ZX, the consequences, given her suicidal ideation, do not bear thinking about. If the fears of ZX are well-founded – and this, for the time being, is the basis upon which we must proceed – we should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm. Is that really the best the care system and the family justice system can achieve?[1]

His frustration mounted. In his third judgment he said:

‘I could hardly have been clearer, both in describing X’s needs and in stressing the imperative to find an appropriate placement for her before her release from ZX. For all that has actually been achieved in the last few weeks, however, despite unrelenting efforts both by the local authority and by other agencies, I might as well have been talking to myself in the middle of the Sahara.’[2]

The factual position at this point was set out in a position statement which was cited by the judge. That statement said, inter alia:

A central concern in this case, which cannot be ignored, is not only the complete inadequacy in respect of available child and adolescent mental health placement provisions, but also the apparent lack of availability of any suitable temporary placements.
… To say the current situation in England and Wales for children with [X]’s (it is accepted unusually high) level of needs is of concern is perhaps an understatement. This is a child who is subject to a care order and who is accordingly owed support by the local authority pursuant to its duties to her as a looked after child. This is also a child who has significant mental health and emotional issues, which make her behaviours both dangerous and uncontrollable. More than this, she is highly vulnerable. Despite all of these factors, she has been placed in a situation where weeks and months have gone by with there being no placement available for her countrywide … The provisions for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive, clinical environment is worryingly inadequate. One has to question what would have happened in this case had [X] not received a criminal sentence? Given the level of her behaviours, where would she have been placed? What provider would have accepted her given that secure units were unwilling to do so prior to her receiving a custodial sentence?
This child has fallen into a “gap” in the system. Her behaviours are so extreme that no residential or supported living placement sourced by children’s services can meet her needs, whilst there is clearly inadequate provision from the NHS and health services of placements, which can manage her mental health needs. Her time at [ZX] has amply demonstrated that placement in secure accommodation cannot meet her needs and is inappropriate.
… This case has demonstrated the inadequacy of the current secure accommodation resources in England and Wales (leading to this local authority having to place in Scotland) and has now gone on to demonstrate the inadequacy of suitable provisions for children with high level of mental health issues, which necessitate assessment and treatment in a secure setting. Placements for vulnerable children and adolescents, be it within secure accommodation of mental health provisions, are a scarce resource.[3]

‘I agree with every word of that’, said the judge. ‘My only cavil is that [this] language is perhaps unduly moderate. The lack of proper provision for X – and, one fears, too many like her – is an outrage.’

And then comes an important passage in which the judge speaks explicitly about the role of judges.

What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.

X is, amongst all her woes, a young person convicted in the Youth Court and a prisoner of the State. As long ago as 1910, a Home Secretary, speaking in the House of Commons, asserted that “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” In modern times the principle has expanded, so that, as is often said, “One of the measures of a civilised society is how well it looks after the most vulnerable members of its society.” If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.

If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.

 My judicial duty, as with every judge in this country, is “to do right to all manner of people after the laws and usages of this realm.” There are occasions, and this is one, where doing “right” includes speaking truth to power. The entrance to the Old Bailey, the Central Criminal Court, admonishes those who enter to “Defend the Children of the Poor.” Is less required of the Family Court or of the Family Division of the High Court? I think not.

 I direct that copies of this judgment be sent immediately to the Chief Executive Officer of NHS England, to the Secretary of State for the Home Department, to the Secretary of State for Health, to the Secretary of State for Education and to the Secretary of State for Justice.[4]

The judgments, and press commentary upon them, seemed to have an effect. It concentrated the minds of the relevant authorities.

NHS England’s medical director for the north of England region was reported in the press as having said that:

The judge is quite right that the relevant agencies need to ensure a safe, new care placement for this young woman which is suitable given the great complexities of her situation. That is what is now happening, and a number of options have now been identified, with detailed clinical and social assessments taking place tomorrow to ensure the right package of care can be put in place before her release date.[5]

Eventually, then, X got the care she needed. But it had not been easy.

The judge was disturbed that his own judicial broadsides seemed to have been necessary to produce some action:

‘Conscious of the dangers of falling into the fallacious trap of post hoc ergo propter hoc, I cannot escape the powerful feeling that, but for my judgment, the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?[6]

Was the judge right to comment as he did?

Yes he was. The objection that in doing so he was stepping unacceptably into the political arena, compromising his judicial independence, is misconceived.

Judges always express opinions

Almost every time the judicial mouth is opened an opinion is expressed. Obvious examples are:

– whether a particular factual witness is telling the truth

– which expert witness is to be preferred

– what the past facts were

– what the future is likely to hold

– the appropriate sentence in a criminal case

– whether it is fair to allow a case to proceed where there has been delay

– the value of damages for pain, suffering and loss of amenity in a personal injury case

– what the law is (it is often not realized by non-lawyers how much uncertainty there is about this)

Some of those opinions affect cases other than the one being specifically considered

 In a common law system judges incrementally create law – producing bespoke legal solutions. That is rightly not regarded as unconstitutional. The doctrine of precedent – essential to ensure legal certainty and reduce arbitrariness – has the effect of binding subsequent inferior courts and thus affecting cases other than the one being specifically considered. Cases are considered by (eg) the Supreme Court precisely because they are likely to be widely and deeply repercussive.

Judges, in other words, judge. And sometimes those judgments/opinions affect other cases. We should not wish it to be otherwise.

Best interests determinations

 The criterion employed by Sir James Munby in deciding X’s case was the ubiquitous ‘best interests’ test. An intervention affecting a child or an incapacitous adult is only lawful if it is in the best interests of the child/adult.

All best interests determinations necessarily entail the judge forming an opinion about both normative and factual matters. The normative opinion is generally not articulated, but in every case the judge is making an assumption about what the Good Life is: how human thriving can be maximized.

In X’s case the normative conclusion is not likely to be controversial. Nor is it likely to be controversial that the eventual outcome was in X’s best interests. The controversy relates to the judge’s comments about the resources necessary to achieve that outcome. Since the outcome requires resources, that is rather a curious objection. Should the judge really be required to ignore the financial and structural realities? To make a declaration that a particular intervention is in X’s best interests knowing perfectly well that there is no practical possibility of that intervention? It seems hard to criticize a judge for speaking to the real world in which X has to live, rather than assuming that she will live in an entirely hypothetical utopia.

To have regard (as the judge did) to the effect on other vulnerable individuals of the system that he had observed in X’s case is hardly to step over the line. That, as noted above, occurs in every single case where a binding legal precedent is established. To do otherwise would be, again, to pretend that things were other than they really are – to pretend that while X may be compromised by the observed absence of proper provision, others will not be. The judge’s critics are asking him to be willfully blind. Judicial independence does not mandate blindness to context and to the danger posed to others in comparable situations.

References

[1] Judgment no. 2, para 35

[2] Judgment no. 3, para 10

[3] Judgment no. 3, paras 26-27

[4] Judgment no. 3, paras 37-41

[5] Cited judgment no. 4, para 11

[6] Judgment no. 4, para 18

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