President of the Family Division, Sir James Munby, has issued guidance on judicial cooperation with Serious Case Reviews.
The guidance has been published because of an apparent "widespread misunderstanding" as to the extent to which judges and magistrates can properly participate in Serious Case Reviews (SCRs)."
Serious Case Reviews are conducted by Local Safeguarding Children Boards (LSCBs) in cases where children who have been in contact with children's services have died or suffered serious harm.
According to Munby, LSCBs have been known to write to judges after child deaths to request an interview, the completion of an Independent Management Review (IMR), or with a list of specific questions. Some LSCBs have written to request that judges attend before them to answer questions in evidence sessions.
Giving clear guidance to judges faced with any such requests, Munby says:
"For important constitutional reasons, judicial participation in SCRs must be limited: therefore, judges do not respond to questions from SCRs, or requests from SCRs to complete IMRs, do not attend evidence sessions or other meetings with SCRs and are under no obligation to provide information to SCRs.
The judiciary takes this stance, not because it wishes to evade scrutiny or accountability, but in order to protect its independence and the independence of individual judges."
The guidance reminds local authorities that "seeking to ask judges to explain their judgments outside the court arena...[is] incompatible with judicial independence" and therefore "if a local authority is dissatisfied with a judgment, then its remedy is to appeal."
For this reason, "it would be inappropriate for an IMR of a judicial decision to be conducted; it would, effectively, be one judge (or group of judges) commenting upon the decisions of another judge outside the proper appellate process."
According to the guidance, it will - in principle - be appropriate for a SCR to have access to all material that the judge had access to in hearing the case; transcripts of the proceedings; all court orders and transcripts of all judgments.
The proper response to any request for information from a LSCB or SCR will therefore be to make available copies of all such documents, though not copies of the judge’s notes.
Judges should provide every assistance to SCRs which is compatible with judicial independence. It is, however, necessary to be aware that key constitutional principles of judicial independence, the separation of powers and the rule of law can be raised by SCRs.