Author Archives: Sarah Phillimore

Human Rights Act claims – where are we now?

23rd March 2017
BRISTOL CJC CPD SEMINARS
Section 20 and HRA claims in light of Hackney, Kirklees, Northamptonshire AND SW & TW

Sarah Phillimore St Johns Chambers www.childprotectionresource.online
If you found this presentation helpful, please consider making a donation to http://www.designability.org.uk

SUMMARY

The situation has been clarified with regard to the procedural requirements of any HRA application and we are getting more illumination about the appropriate level of damages. But fundamentally we have a situation where the law provides outcomes which are arguably unjust. This will mean case law may continue to contort as judges continue to try find a way around.

Breach of duty /Damages re section 20 misuse
The Hackney case provoked significant comment from both lawyers and social workers on line I don’t agree that it marks ‘the end of damages for section 20 claims’ but it is an important case:
• use of word ‘object’
• continued relevance of good practice directions
• comment on quantum of damages for HRA breach

The beginning of the end for viable HRA claims for the publicly funded (or even anyone)?
• Hackney is critical of level of damages
• Kirklees sounds the alarm re issue of costs/statutory charge
• SW & TW set out strict procedural requirements to make HRA application.

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

1) 8 children went into foster care for a few months after police intervention. The Williams’ initially signed a section 20 agreement . It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and said they would consent to section 20 accommodation for a short time. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams knew they had the right to apply at any time to vary these bail conditions, but did not do so. Once the bail conditions were varied, the children returned home a few days later.

2) There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?
3) In 2015 the first instance court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won.

4) The parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin)

5) However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them.

6) The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

7) These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N ‘

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.

8) The Court of Appeal commented that as the ‘good practice guidance’ was set out AFTER the Williams’s children went into foster care, they would need to examine the actual law. The key consideration was section 20(7) which sets out that a LA may NOT provide accommodation for any child if any person who has PR is willing and able to accommodate him and OBJECTS.

9) The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.

10) The Williams could not have offered accommodation. The statutory test was not whether they offered consent to section 20 accommodation, but whether they actively objected to it. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

11) The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed the very clear view that £10,000 was too high in any event.

ANALYSIS

12) This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

13) In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object.

14) Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

15) However, considering the impact of the statutory charge, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice. European jurisprudence is clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. Therefore levels of damages are likely to be low.

Kirklees Council CZ (Human Rights Claim: Costs) [2017] EWFC 11 (16 February 2017)

16) A clear example of an unlawful breach of Articles 8 and 6 of the ECHR – the parents’ child was removed from their care as a new born baby and lived with grandparents for a few weeks. This was done without telling the parents what the plan was and repeatedly misleading the court about whether or not the parents did know and did agree.

17) Cobb J realised that the amount of damages – £3,750 to each parent and child – will inevitably be swallowed up by the statutory charge.

18) The costs in the case before Cobb are set out at para 46 of the judgment. They are horrifying. The ‘grand total’ is around £120K. This is all public money. The parents argued hard for the LA to pay their costs, realising the impact of the statutory charge. However, Cobb J refused; the LA it seems had made sensible and timely efforts to settle this case, realising that their conduct could not be defended.

19) His reasons are set out very clearly at para 58:
• The court’s wide discretion cannot be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome’
• If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not
• the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;
• The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award.
• Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
• The court cannot disregard the parties’ litigation conduct in evaluating costs; the Claimants did not conscientiously attempt to settle their claims but the LA did The impact of the Northamptonshire case.

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam) (17 February 2017).

20) This case involved an 8 year old boy ‘H’ who was placed in long term foster care with contact to his father. The LA had failed to issue care proceedings until 2016, despite clear and obvious concerns about the care H was receiving from about 2012, and had wrongly restricted H’s contact with his father. H’s solicitors issued a HRA claim and the LAA granted a separate public funding certificate, Keehan J having stated that this application should be made separately but determined alongside the care proceedings.

21) H’s solicitors sought clarification from the LAA as to the impact of the statutory charge upon such a ‘free standing’ HRA application. The LAA replied to say that ‘subject to the extent of the connection between the Human Rights action and the initial Care proceedings any Damages recovered as a consequence of the Human Rights proceedings will be subject to the Statutory Charge and it is possible that the liability will extend to the costs arising from the Care proceeding. The consideration of the connection is made once the settlement is reached, and would depend on the facts of the case’.

22) The LA then made an open offer to settle H’s HRA claim for £18,000. The court decided that it was not possible to agree the amount of damages unless first knowing what the LAA were going to do about the statutory charge; if the costs of the care proceedings were included, the statutory charge would consume the entirely of the agreed damages. The LAA were thus invited to intervene in the proceedings. They initially stated that they would apply the statutory charge. However, their eventual position ‘at the 11th hour’ was that they would NOT apply the costs of the care proceedings to the statutory charge.

23) Because the LAA had taken so long to confirm its position, the LA agreed to pay H’s costs only up until the date the LAA were invited to intervene. All costs incurred thereafter should be met by the Lord Chancellor’s Department. It was argued that the provisions of s.51 SCA and CPR r.46.2 clearly provide the court with the power to make a costs order against a third party and the behaviour of the LAA justified the making of such an order. Keenhan J agreed he had the power to make such an order and he would do so. He confirmed that £21,500 was the appropriate sum of damages to be awarded to H.

24) Keehan J made it clear that he understood and deprecated the impact of the statutory charge, commenting at paras 120 and 121 of his judgment.

The issue I raise, in the context of HRA claims brought by children, and by parents, during the currency of pending care proceedings, is whether it is just, equitable or reasonable that damages awarded to a child, or to a parent, as a result of breaches of his/her Convention Rights by one organ of the State should be recouped by another organ of the State in respect of public law proceedings which would otherwise not be recoverable. Public funding in such cases is non means tested and non merits based. Furthermore, save in exceptional circumstances, the local authority issuing the care proceedings is not liable to pay the costs of any other party: Re T [2012] UKSC 36.
I very much doubt that such a recoupment is just, equitable or reasonable. In the vast majority of cases the effect of the recoupment of the child’s or parent’s costs of the care proceedings will be to wipe out the entirety of the HRA damages awarded. In this event, the child or the parent will not receive a penny.

 

General guidance offered by Keehan J

25) He discussed the judgment of Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160 which was expressly approved by and received the “whole-hearted endorsement” of the Court of Appeal in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, per Wall LJ at para 98. Re L drew an important distinction between those cases where HRA issues arise when care proceedings are on-going and where care proceedings have come to an end. In the latter case, the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. However, if care proceedings are on-going, the President was very clear that HRA claims should be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings.

26) Keehan J was clear that the present case was an example of when it was permissible to issue a separate application for a HRA and that it was likely to be a tactical necessity if damages were sought, saying at para 115

…the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded.

 

SW & TW (Human Right Claim: Procedure) (No1) [2017] EWHC 450 (FAM)

27) Another judgment of Cobb J, this sets out the ‘essential procedural points’ for making at HRA claim. See paragraph 3. Applications for ‘substantive relief’ should be issued as civil proceedings by way of a Part 8 CPR 1998 claim even if within existing CA proceedings.

28) Key points
a) claims for substantive relief such as declarations and/or damages should be issued formally, (NOT by introducing it in a skeleton argument!)even if made within existing proceedings; if the party is seeking to “rely on the Convention right or rights” (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate
b) A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR 2010. Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out inter alia in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children’s Guardians acting as litigation friends in HRA 1998 proceedings;
c) It is therefore not appropriate for a Children’s Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or ‘front’ the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes – either the filing of a certificate of suitability under Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);
d) Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
e) The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ in HRA 1998 claims (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
f) the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or ‘connected’: section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages;
g) In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in this case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate;
h) PLEASE think hard about settling! This case illustrates once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR) ….Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

Can anything be done to avoid the statutory charge?

29) Free standing applications (BUT note implications of increased procedural formality)
30) Costs orders – but bear in mind litigation conduct
31) Section 17 of the Children Act 1989 section 17(7) allows cash payments.
32) General wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person
33) Complaint pursuant to section 26 of the Children Act 1989

Damages awarded in other cases – RANGE approximately £3k-£70K

34) P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
35) Northamptonshire CC v AS [2015] – damages £16K.
36) Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
37) In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
38) Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
39) B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
40) Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
41) X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
42) BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
43) GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice. £10,000 awarded to the mother and £5,000 to each child.
44) London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
45) CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Are the family courts biased against men?

Too long, didn’t read: No.

This is a post by Sarah Phillimore

But as ever, its more complicated that that. This is clearly an issue that generates strong feelings. If there is no bias in fact there is certainly a perception from many that bias exists. What is going on here? And what if anything can we do about it?

On Saturday March 18th, I spoke at the Families Need Fathers’ Annual conference in Bristol. The text of what I said is largely what is set out in this post so I refer you to that for more detailed consideration of the statute and case law that informs my views.

I have already commented on accusations that I am ‘sexist’ in this post, which may also be worth a read if this is something that concerns you. All I can say is that I was grateful for the opportunity to speak before an audience that was overwhelmingly male and I hope I engaged respectfully and listened carefully what these men wanted to say to me. I am not ‘sexist’. I speak the truth as I see it. If you disagree – tell me and tell me why. But don’t fall back on stale and tired insults.

The issue of real or perceived bias sparked some interesting debate at the conference and later, via Twitter. The issue of how family courts treat men is certainly one we need to address, given the strength of feeling it engenders.

I was very concerned for example, to hear at the conference on Saturday that Dr Sue Whitcombe was alarmed by the bias she perceived from such agencies as CAFCASS, against fathers. The President of the Family Division urged her to raise this with the ‘top brass’. I hope she does.

Justice must, after all, be seen to be done.

Why can’t a father just see his kids as and when he wants?

This superficially simple question encapsulates the difficulties in this area. Is the family court deliberately, systemically biased against men? Is it sanctioned by either law or culture that the mother holds a veto on the father’s contact?

No. I don’t believe that for a moment. I think the reasons why so many men seem to believe that it is, are explained by many complicated factors. I set out below the ones which weigh on my mind and then some possible solutions or directions of travel.

I don’t mind you disagreeing with me. There may be things I need on my list, or things you think shouldn’t be there. By all means raise this me, in constructive comment. But if you just want to insult me, I am unlikely to find that persuasive.

Contributing factors to the perception of bias

  • Most mothers, most of the time, are primary carers of young children.
  • Many men, quite a lot of the time, appear to see looking after young children as boring, unrewarding, low status and they don’t want to do it.
  • When parents split, the situation that existed before the split is likely to be maintained – i.e. mother as primary carer.
  • Children aren’t parcels to be passed back and forth or a cake to be divided up between hungry parents. They need a home. They need stability, security and routine.
  • Quite a lot of men seem to see their relationship with their children thorough the lens of ‘their rights’ and are unwilling or unable to focus on the child’s experience
  • Quite a lot of women seem to see their relationship with their children as essential to their own identity and become ‘over enmeshed’ with child; they over-react to imagined or perceived defects in the father’s parenting. For further comment on this, see this post about the Rebecca Minnock case. 
  • Quite a lot of people seem to enter into intimate relationships and share their genetic material with people they do not like, do not trust and cannot communicate with.
  • The family courts does not have the tools needed to tackle the psychological dysfunction of parents. There is no easy access to therapeutic help or even supervised contact.
  • court buildings are poorly designed and don’t help parents talk to one another at court or feel comfortable in the court room; tensions remain high
  • The government has removed legal aid from private law cases and created a situation where mothers are encouraged to make allegations of violence against fathers to secure funding
  • there is a lack of judicial continuity as court loads increase but numbers of judges stay the same, or fall.
  • There is a growing number of ‘professional McKenzie friends’ who have rushed to fill the post LAPSO gap and some of whom provide dangerous and unhelpful advice
  • The debate is often ceded to the extremes at either end; to the detriment of sensible and constructive discussion

What can we do about this?

Having a Twitter spat can be entertaining for a brief moment but its utterly futile if all it achieves is people shouting at one another across the electronic abyss.

Here are my suggestions for some solutions. This almost certainly isn’t exhaustive. Please give me some more ideas. The very first step is that we MUST be willing to TALK to each other – not shout over one another. See for example Lucy Reed’s plea on Pink Tape. 

  • early, compulsory education about relationships and what makes them healthy and good
  • early, compulsory education about the realities of parenting and the need for BOTH parents to be involved.
  • pre-martial couples counselling so people at least ask each other ‘do we want children together?’ ‘What would we do if we split up?
  • Better access to advice for litigants in person; recognition that mediation is not the cure all for situations where there is an imbalance of power.
  • More resources for the family courts so there are enough judges to hear cases quickly and maintain continuity.
  • Recognition that CAFCASS personnel, social workers and private law children lawyers are more likely to be women. What’s going on here? Why don’t men want to do these jobs? Is it because areas of work dealing with children are seen as low status?
  • better recognised and better funded pathways to assessment and help for those cases which are becoming intractable.

And perhaps most importantly, and touched on by many at the conference and afterwards. DATA. DATA. DATA. What are the actual facts? What’s happening? What’s working? how can we get this data, interpret it and apply it? This is a clear and keen concern for many; see for example the recent speech by McFarlane LJ.

The President hopes this situation will improve by growth of digital court and consequent ability to ‘mine’ digital systems for data. I hope he’s right.

Over to you Peter.

EDIT 20th March 2017 – ‘lawful’ versus ‘sensible’ actions

Sadly I have to edit this post following my Twitter conversation on 19/03/17 with Peter who appeared to be relying on what I published as ‘expert advice’ that men could simply attend a school and remove their children without consulting the child’s mother or asking her permission.

If that is how Peter is going to interpret what I said, this causes me significant unease on a number of levels:

  • I do not offer ‘advice’ over Twitter. It would be foolish and irresponsible in the extreme to do so. I don’t know your case, I haven’t read the papers, I can’t possibly understand what is going on.
  • What I do – I hope helpfully – is attempt to explain general principles of law that may or may  not apply to your situation. I also point out that you should ALWAYS take time to get particular advice tailored to your particular situation, before deciding to do or not to do something.
  • With that in mind, these are the general principles Peter needs to bear in mind and pass on to the men he ‘advises’
    • If a father has parental responsibility and there is no court order in place preventing him, then there is nothing inherently ‘unlawful’ in turning up at school and taking your child;
    • In my experience in the South West, the police are highly unlikely to act if a child is with a parent who has parental responsibility, provided no court order is breached and they are satisfied that the child is safe and well;
    • HOWEVER the police will act to prevent the commission of a crime and to maintain public order. It is therefore usually extremely foolish if you are already in a situation of conflict with your ex, to do something, such as remove a child from school without prior warning or consultation, which can only be seen as  hostile act by the other parent;
    • If you are in a high conflict situation then I am afraid the practical reality is that the parent with primary residence does have an effective ‘veto’ on your actions, unless and until this can be resolved by you a) both talking to one another and sorting it out b) going to mediation and sorting it out c) going to court and getting an order to sort it out.

PLEASE REMEMBER that just because something is technically ‘lawful’ that does not mean for one second that it is either advisable or sensible to do it. I know it is frustrating to feel that you have to dance to someone else’s tune, particularly when you know you have done nothing to merit being excluded from your child’s life. But if you go down the path, in high conflict situations, of insisting on YOUR rights being exercised in face of opposition from the other parent, I can predict with near absolute certainty that your future looks bleak, in terms of any hope for resolving your difficulties and co-parenting in harmony.

I hope this is helpful Peter.

 

 

 

 

Much, much more of this please: the Bridget Lindley OBE Memorial Lecture 2017

Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children?

This is a post by Sarah Phillimore 

On March 9th 2017 Lord Justice McFarlane delivered the first of the Bridget Lindley OBE Memorial Lectures.  He began by paying tribute to the memory of Bridget Lindley who dedicated her career to the work of the Family Rights Group. She is greatly missed.

I am sorry that I never got the chance to meet Bridget Lindley. I have often expressed both sorrow and exasperation at the apparent dearth of intelligent committed people who wish to direct their energies into understanding the child protection system and making it better, rather than wasting time and energy on unfair and unprincipled criticism and attack.

But I am glad that I got the chance to meet Lord Justice McFarlane and to witness first hand a member of the senior judiciary who is genuinely concerned and interested about what happens ‘at the coal face’ in the day to day toil of the family courts, so far removed from the gothic splendour of the RCJ and ermine robes of the High Court.

The historical development of our understanding of what is child abuse?

He offers an interesting historical precis of how our understanding of what happens to children has developed over the years. What we recognise now as clear ‘child abuse’ would not have been seen as such by a time traveller from the 19th Century – or even from the 20th Century.  As McFarlane LJ comments:

The ability of a society to acknowledge and begin to understand unpalatable truths, about how life is lived by some of its members, is a sign of maturity that only comes with time and the result of a long road carefully travelled. Thus it was only in the  middle of the 20th Century that it came to be accepted that a parent might physically ill-treat their child….

In terms of what kinds of mistreatment we are willing or able to identify as ‘child abuse’, he notes that the ‘professional pendulum’ will inevitably swing between under and over diagnosis before coming to settle on a well-informed understanding of what the available evidence in any particular case might indicate. We see this process in the continuing debates about ‘shaken baby syndrome’ and ‘parental alienation’. We may still have some way to travel along particular pathways in the debate but what is clear is that our knowledge base is immensely more sophisticated than it was in the 1970s.

What happens in other countries?

In this we seem to be apart from other European jurisdictions; an interesting counter weight to the oft expressed (and erroneous) view that the UK is ‘alone’ in permitting ‘forced adoption’. McFarlane JL recognises that other countries make the decision to take a child away from its parents as a largely administrative determination, overseen by tribunals. ‘Fact findings’ to determine if abuse has happened are rare; ‘permanency planning’ for children also appears not to feature in decisions about children.

So is the true picture that other European countries are less keen on promoting adoption because they simply do not have the court structures to enable them to determine the nature and degree of abuse children have suffered at the hands of parents?  It would be ironic indeed for many campaigning groups if the true picture from abroad is that both children and parents are less protected in systems which do not promote ‘forced adoption’. But sadly, I do not have anything like the knowledge base necessary to continue this interesting line of discussion and absent Claire Fenton Glynn’s return to this field, I don’t think anyone has.

Better knowledge and understanding of what other countries do to protect children is urgently required. We are very different from other European countries. We need to understand why and we must not be afraid of finding out what long term outcomes look like for children in the different systems.

The current strengths of our system

The strengths are immediate and obvious, despite the crude propaganda from several campaigning groups. Robust challenge is not merely permitted of the state’s case; it is expected, it is demanded, and the state funds it. We have developed a sophisticated understanding of not only the child’s experience in a family, but of how and why that family can be supported to look after their child.

But there is no room for complacency. Lord Justice McFarlane identifies ‘six short points’ and three significant problems that give him continuing cause for concern.

The Six Short points.

  • Neglect and resources – many cases involve low level neglect of children. At some point the balance tips away from trying to support the family into a decision to remove a child. So when is this tipping point? Who decides? What happens when the family has not been well supported as resources just aren’t available?
  • Post Adoption Contact – there is still no ‘sea change’ 10 years on from the Adoption and Children Act 2002. Attitudes persist that adoptions should be ‘closed’ and there appears to be little creative thought about how to consider other options for a child. See here for further discussion of this issue.
  • Interventions to support parents – why has it taken so long for initiatives such as FDAC and Pause to be made available, when they are so plainly beneficial in the right cases?
  • Special Guardianship Orders – are they being over-used? Is the pressure of the 26 week timetable causing problems?
  • Domestic abuse – are we really getting the balance right here? Isn’t it better for children to stay at home with protection and support? are the family courts keeping up with the criminal courts, and are they sufficiently alive to issues about coercive control? (NB the Transparency Project will be launching its Guide to understanding how issue of violence and abuse are dealt with in family courts at CPConf2017 on the 9th June – see here for more details)
  • Independent Reviewing Officers – there has been NO occasion when an IRO has bought a case back to court, even though many cases have clearly required that kind of scrutiny. Is a key aspect of system thus falling short? What can we do about it?

The Three Big Reasons to Hesitate

Is adoption the best option?

McFarlane LJ makes clear this is a genuine question. He has no concluded view but it is important to ask. I wholeheartedly agree. It has been a frequent feature of my commentary and complaints over the years that successive Governments have simply churned out the ‘adoption is best’ mantra without much thought or examination of the evidence base for that, or the demands of Article 8 of the ECHR.  He makes the clear and crucial point:

Adoption has changed in a number of important respects over the past two decades and a number of the characteristics of adoption, and the assumptions on which it hitherto has been based, have shifted.

Historically, when a child was adopted, both law and practice went to great lengths to achieve a total separation between the child and the natural family. That’s a much less achievable position with the exponential rise of social media. Also the ages at which children are adopted are rising – 20% of current adoptions are of children who are over 4 years old. Children are therefore more likely to have clear memories of their birth families, and have been exposed to more trauma within them.  McFarlane gives a well deserved shout out to the work of the POTATOs – Parents of Traumatised Adopted Teens – who give striking accounts of the difficulties they have faced parenting teenagers traumatised by their earlier experiences, often being given only a partial account of the actual experiences of their child. Often these children end up returning to the care system via section 20 of the CA when their parents can no longer cope.

There is a very welcome recognition from McFarlane LJ that the nature of adoptive parenting is probably now shifting; rather than providing cute babies for couples who can’t have their own children, adoptive parents must now be recognised as needing to provide specialised therapeutic parenting, which has impact upon not merely the recruitment and training of adopters but the provision of support for adoptive families, for the rest of the child’s minority and even beyond.

We also need much better information about long term outcomes – courts have to make decisions about a child’s adoption based on his or her welfare for an entire lifetime. On what evidence does a judge currently make that kind of decision? This links to the second big question.

But how do we know it has worked out alright?

Family judges get almost no feedback on the outcomes of their decisions. Even when an adoptive placement breaks down, the Judge is not informed as a matter of course. McFarlane LJ does not suggest it would be appropriate for the Judge to play any part in a review of why a placement breaks down, but it could only be beneficial for the Judge to be made aware, by a short report. He recalls the incredulity of a business consultant, called into to review the family justice system, on being told that the key decision makers, being paid a high salary, were given ‘absolutely no information as to whether their decisions had been effective’.

He comments

So my first two ‘buts’ are related. Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is ‘necessary’ to do so to protect the child, is indeed justified

Third Big Question: Transparency and the need to shine a light on what we do

Of all the valuable and worthwhile issues raised by McFarlane LJ in his speech, it is this final part that brings tears of gratitude to my eyes. He generously recognises the efforts of The Transparency Project in this regard – ‘transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes. We must generate a far greater understanding amongst the public about what is behind the decisions made.

He recognises the chilling impact of the less responsible of the groups which campaign against the ‘evil’ family courts, an issue about which I have raged and agonised for many years now, increasingly incredulous at the apparent lack of interest in just how much damage these groups can do.

He comments:

From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust show by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.

Conclusions

Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children at risk of significant harm may be are central issues in every child protection case.

We can’t respect human rights without engaging fully in the process where those rights are embedded. If parents are being prevented from engaging, either because they do not know their rights or they are being given ‘targeted advice’ NOT to engage, they risk losing their children. And their children risk losing their parents. It is that simple and that stark.

Judges need proper information on which to base their decisions about the rest of a child’s life. They cannot be left – in his rather terrifying metaphor – as if they are learning to play darts by throwing them randomly about, without sight of the dart board and not knowing if they had hit the board or the wall.

To this end, McFarlane LJ offers some suggestions for a solution:

  • significantly raise the level of public education and awareness as to the way in which the family system operates
  • ensure that parents are exposed to accurate and sound legal advice at the earliest stage, including pre-proceedings
  • conduct extensive research into long term outcomes for children so Judges can have proper information on which to base decisions.

An example of an innovative and low cost solution to both is the Family Court Information website at the Bristol CJC, brain child of Lucy Reed. It is frankly disgraceful that this initiative has not been taken up nationwide. I struggle to think of a better example of such valuable information being provided at such a low cost. Setting up the website for each court area would cost less than £1,000. The analytics for the web site show it is being accessed regularly far beyond the local area it serves. There is clearly a need here for accurate, clear information.

I applaud the range and depth of this speech. It grapples head on with some of the most difficult issues I have been worried about over many years now. I do hope that something so clear and courageous in its willingness to both ask and attempt to answer some really important and difficult questions, now heralds a new Dawn in the long, dark night of woeful and compromised ‘debate’ about the child protection system. We can no longer leave the field open to those who spread misinformation and misery.

It’s time to reclaim our child protection system. To celebrate its many strengths. To tackle head on without fear or shame, its many weaknesses.

It’s been a long time coming.

 

The full text of the speech is set out below

Holding the risk:
The balance between child protection and the right to family life
Lord Justice McFarlane

Bridget Lindley was an exceptional individual who, as Cathy Aston has just reminded us, dedicated nearly 30 years of her career to the work of the Family Rights Group. As a highly intelligent and focussed lawyer, Bridget could have succeeded in any field of legal endeavour to which she had set her mind, no doubt earning accolades and significant financial reward for herself in the process. The fact that she chose not to pursue personal success, but to devote her working life to the cause of family law and its improvement was to the great benefit to all of us who knew her but, more importantly, to the benefit of countless children and families.

It is no surprise that one of the two people who were invited to join the newly formed Family Justice Review, under the chairmanship of David Norgrove, to present ideas at the Review’s very first meeting was Bridget Lindley. Her authoritative contributions, both at that important first meeting and throughout the process commanded the attention and respect of the entire panel.

I regarded Bridget as a superb children’s lawyer, whose views on policy and how key policy aims might be met were always as sound as they were clear. I admired her greatly as a fellow professional and enjoyed her company as a friend. It is so desperately sad that her life ended so suddenly when she was still at the peak of her powers. She is greatly missed and The Family Justice Council are to be congratulated for instigating this series of lectures in her memory.

***

Introduction
In preparing this lecture over recent weeks I have had the benefit of conversations with a number of friends and colleagues who have been kind enough to offer their views on the question of whether or not we currently have the balance “right” as between, on the one hand, the need to protect children from harm and, on the other, the need to respect the right to family life. More than once during these conversations I have had cause to recall the memorable scene in “Monty Python’s Life of Brian” where the chief conspirators in a plot to overthrow the Roman State, “Reg and Stan”, meet with others to discuss the revolution. The response to Reg’s, presumably rhetorical, question “And what have the Romans ever given us?”, is a whole list of helpful suggestions from his mild-mannered co-conspirators leading to the following concluding exchange:

Reg: “Alright … alright, but apart from better sanitation and medicine and education and irrigation and public health and roads and a fresh water system and baths and public order … what have the Romans done for us?”

Xerxes: “Brought peace!”

Those of us who practise regularly in the field of family law may be forgiven if we put forward discreet issues which may currently be at the tipping point of the balance referred to in my title because these are, indeed, current points of interest and importance. This is indeed what I am about to do in this lecture, but it is crucial that we do not lose sight of the big picture. The big picture is, in my view, that, in our jurisdiction Parliament, informed by the Law Commission, the courts and practitioners (legal, social work, and medical) have, over the course of three decades, developed a highly sophisticated system which affords very significant regard both to child protection and to human rights.

Indeed, it is because of the high level of knowledge and experience that has been developed within our system over all these years that we can contemplate the need for any fine, or as I may tentatively suggest in my conclusion gross, further tuning that may now be needed.

In order to make good the claim to sophistication that I have just made, and to describe in broad terms the overall landscape within which this debate sits, I propose to spend a short time colouring in the major background features relating to child protection and human rights before descending to certain specific current issues.

Child Protection
In relation to child protection I make no apology for rekindling a theme that I have developed elsewhere in the past. The understanding that some children may suffer significant harm as a result of the actions of those who should be caring for them is, astonishingly, a relatively new idea. It was only in the 1960s and 1970s – that the occurrence of physical abuse of children came to be accepted as a cause for injury by experts and the public at large.

In the opening paragraph of their seminal book “Child Abuse” published in 1978 by Kemp & Kemp the following appears:
“A book on child abuse could not have been written 100 years ago. If an investigator from the 1970s were to be transported back to the 19th Century so that he could survey the family scene through modern eyes, child abuse would be clearly visible to him. In the past, however, it was largely invisible to families and their communities. Before it could be acknowledged as a social ill, changes had to occur in the sensibilities and outlook of our culture.”

The ability of a society to acknowledge and begin to understand unpalatable truths, about how life is lived by some of its members, is a sign of maturity that only comes with time and the result of a long road carefully travelled. Thus it was only in the middle of the 20th century that it came to be accepted that a parent might physically ill-treat their child and the victim of, what had hitherto been described as, “unexplained infant trauma syndrome”, came to be recognised as “a battered baby”.

It is, I understand, recognised that a society’s ability to contemplate, understand and then accept the existence of more subtle, or even less palatable, categories of abuse takes time and follows on from the first stage, which is the entry level acceptance of physical abuse. The spectrum of abuse is broad and the shading within its various categories may be subtle, opaque and multi-faceted. It includes, as basic categories, neglect, sexual abuse and emotional harm, but, within each of these broad categories, like the sub-divisions of the roots of a plant, the many and various individual manifestations of harmful behaviour multiply and only fall to be understood by professionals on a progressive basis over an extended period of time.

The snapshot provided by the work of Kemp & Kemp in the 1960s and 70s illustrating the moment when the idea that some parents might physically harm their children is replicated by another snapshot paragraph, this time from the opening section of the “Report of the Inquiry into Child Abuse in Cleveland 1987” – the Butler-Sloss Inquiry – which reads as follows:

“Child abuse, the non-accidental injury of a child, received increasing attention in this country in the 1960s and followed upon its recognition in the United States. Public awareness of its nature and frequency grew in the 1970s. The background, early attitudes towards and subsequent general recognition of non-accidental injury has been set out in detail in various early reports on child abuse. A parallel can be drawn between the reluctance to recognise physical abuse in the United Kingdom in the 1960s and the reluctance by many to accept the reality of certain aspects of child sexual abuse in the 1980s … It is obviously important to recognise that the categories of abuse are not closed.”

Whilst noting that there is some historical evidence, for example from Paris in the 1860s, of abuse of older children and, following the passing of the Incest Act in 1908, of sexual assault within the family, the Cleveland Report goes on to state “there is perhaps a new recognition that younger children are also subject to abuse and their plight has only just come to light.”

The audience for this lecture and those who may subsequently read it are likely to be well versed in the details of the history lesson that I could now go on to give. Whilst I will, therefore, spare you the detail, the fact that our understanding of child abuse has developed to such an extent and at such a pace over the course of the last 40 years remains, to my mind, astonishing.

Our understanding of child sexual abuse has now, one hopes, settled down, albeit that it is inevitably constantly developing. The heady days of the 1980s, represented by the events leading to the Cleveland Inquiry, are long past. But, they represented, I would suggest, both necessary and inevitable swings of the professional pendulum between under-diagnosis and over-diagnosis, whilst the doctors, psychiatrists and psychologists came to settle on a well-informed understanding of what the available evidence in any particular case might indicate. The fruits of this important process of professional oscillation are well known and are now an entrenched part of our everyday work in this field.

The guidelines for the structure and content of achieving best evidence (“ABE”) interviews, for example, which we now take for granted, did not just fall from the sky but resulted from a period of intensive work by a number of gifted and insightful professionals over the course of years.

The first edition of the Royal College of Physicians “Physical Signs of Sexual Abuse in Children”, published in 1991, is a small A5 paperback running to well under 100 pages. The most recent 2015 Edition now published jointly with the Royal College of Paediatrics and Child Health and the American Academy of Paediatrics is a very substantial A4 size 300-page document.

Similar examples of the development of our understanding can be given across the board. Determining whether signs in a baby’s brain and eyes are diagnostic, or at least highly probative, of the child experiencing an unacceptable degree of force remain, to an extent, controversial. In particular, the degree of force required to produce bleeding in the brain and eyes remains something of an open question simply because of the impossibility of conducting clinical testing and producing an outcome which is acceptable across the mainstream of experts in biomechanics.

In other fields families in which it may be said there has been “factitious illness”, “parental alienation syndrome”, “ME”, “ADHD”, “spiritual abuse”, and many other circumstances in which children may have suffered significant harm have had their time in the spotlight and remain an aspect of our everyday caseload.

More recently, the identification of a standard list of ACE’s [‘Adverse Childhood Experiences’] and the understanding that the more ACE’s a child has experienced the greater is the impact on their welfare, both as a child and as an adult, has added to our understanding but, in doing so, has necessarily focussed on yet more children who may need protection from having been exposed to a cocktail of adverse experiences.

The diligent professional work over decades by those in the medical profession and elsewhere who have developed an understanding of what is, and also what is not, harmful to children has produced a body of knowledge which can only be seen as highly sophisticated when compared to that available in, say 1970. This is plainly beneficial in general terms to the protection of the children that we seek to serve in this jurisdiction. There is, however, a further important point to make. The fact that I, as a lawyer, wholly untutored in the medical world, can speak to you of these disparate and complicated matters and that each and every one of you, the lawyers in this audience, know precisely what I am talking about and have your own professional experience of dealing with individual cases that have engaged with these topics in granular detail, to my mind, speaks volumes and marks our system out at least from those others across the world, of which I have some little knowledge.

At the risk of speaking in a manner which may well be wholly unjustified, but, I fear is not, and with apologies to those in other jurisdictions who may be justly offended by what I now say, it is my belief that the degree to which we investigate potential child abuse within our family court system is on a wholly different basis and scale from that undertaken elsewhere. Across Europe the decision to take a child into care is largely an administrative determination overseen by tribunals and an administrative court structure. The idea of “fact finding” to determine whether or not abuse has occurred seems to be rare. The concept of ‘permanency planning’, which is at the centre of UK social work is, I understand, not a feature on the Continent.

It is no part of my pitch to you to adopt an arrogant position and suggest that the approach in this jurisdiction is “right” and other jurisdictions are “wrong”. My point is simply that it must be wholly beyond argument that we attach a high premium to understanding and, where it exists, identifying circumstances where children are, or are likely to be, experiencing significant harm. Secondly, this is not a one-sided process. One of the great benefits of our system, driven, as it is by the regard afforded to the human rights of the family and those accused of abuse, is the degree to which we not only tolerate but welcome robust and informed challenge to the detailed evidence in an alleged abuse case. Comparisons are sometimes made between the Legal Aid bill for child protection cases in this jurisdiction and that which is provided elsewhere. Whilst in fiscal terms that such a comparison is made is understandable, but, as I have attempted to illustrate, it is in no manner comparing like with like.

Again, with more than an eye to the human rights’ component, a cardinal benefit that arises from the court steeping itself in a very detailed understanding of the harmful events that the child has experienced in the past is that a bespoke and proportionate plan can be established for the future and, in particular, so that that plan may, in the right circumstances and despite the past occurrence of abuse, contemplate the child being brought either with her parents or, at least, elsewhere in the natural family.

One example of this comes clearly to mind. Ten or fifteen years it would be expected that, following a finding that a baby had been shaken, the care plan would not contemplate returning the child back home to the parents’ care. Now it is not infrequently the case that a detailed understanding of precisely what has occurred in the moments that it took to inflict such an injury renders the case amenable to intervention, support and therapy so that the child can be returned to the care of the family in the expectation that life will, henceforth, be lived in a different way so as to avoid the circumstances that led to the shaking.

Family Life
Turning, more shortly, to the second half of the “big picture”, namely respect for the right to family life, it is my belief that, in like manner but obviously different terms to that achieved for child protection, we have developed a sophisticated understanding of what is needed in order to afford full respect to each individual’s “right to family life” under ECHR, Article 8. I am taking this important aspect shortly because the history of its development and the fruits thereof are well known and, indeed, are expressly referred to in virtually every determination by a family court in child care proceedings relying upon the judgments of the Supreme Court in Re B (A Child) [2013] UKSC 33. I recently devoted an entire lecture to the topic of “Nothing Else Will Do” ([2016] Family Law 1403) and I do not intend to repeat one word of that lecture on this occasion.

Drawing matters together in terms of the big picture, I consider that as a result of the professionalism, dedication and experience of very many who have been involved in this work over the past two or three decades, not least, of course, Bridget Lindley, whose memory we celebrate tonight, we have developed, and are continuing to develop, a system which seeks to afford full regard to the need to protect children from significant harm but, at the same time, respects the human rights of those directly affected by the decision. It is at least adequate, I hope, in every single case. In the high-end cases, as has been said to me, it must be seen as “a Rolls Royce process” with high quality judges, free legal aid, the highest standard of legal representation, world class experts, and with the voice of the child being separately represented by a team of equal standing to the other parties.

There is, however, no room for complacency. Despite the deployment of high calibre resources, the courts sometimes get it wrong and must not be afraid so to find if that is the case. Recent examples, on either side of the line are the case of the Webster family [Webster v Norfolk CC [2009] EWCA Civ 59] and, more recently, the decision of the family court to return young Ellie Butler home, only for her to be murdered by her father 11 months later.

These individual tragedies, which undoubtedly they are, are also tragedies for society in general. The consequences of them underline just how high-risk the decision may be in a child protection case. The court order may remove a child from his or her family for the rest of their natural life, when, in truth, there is no justification for doing so, or, the court may decide to send a child home, believing that there is no continuing risk of harm when, awfully, the contrary is the case. That these high profile failures, when compared to the courts’ annual child protection case load of around 15,000 are few is no justification for complacency. Magistrates and judges who are making these important decisions case by case on behalf of society in general, carry a heavy burden. In terms of who in society “holds the risk” in these cases, the answer is that, more and more often, it is the magistrates and the judges.

Despite the very positive description that I have given of the “big picture”, thus far, there are three topics which have caused me to hesitate and to hold back from simply concluding that all is well, ending my lecture here and sitting down. Before turning to these three “buts”, as I shall call them, I propose to take a different tack at this point and offer a few short suggestions as topics for fine tuning of the system as it is at the moment.
Six Short Points
(1) Neglect and Resources
The first point relates to neglect cases. I do not have statistics, but it must be the case that low to medium level cases of persistent neglect make up the majority of care and adoption cases before the court. In such cases reference is had, and rightly so, to Mr Justice Hedley’s dicta in Re L (Care: Threshold Criteria) [2007] FLR 2050. In every case there is a line to be drawn, or as a matter of strict legal structure, two lines in deciding (a) whether the threshold criteria in CA 1989, s 31 are met and (b) whether the child’s welfare requires placement away from the family.

It is easy to describe the structure, it is easy to refer to Re L, but in these cases, which sit on the very cusp, making the decision whether to remove a child from home or leave her there is often far from easy. Where is the line? Who is drawing it? There is no neat Court of Appeal authority to help with the nitty gritty question as it falls to be decided case by case. A good deal must turn on the value judgment of the court, assisted by professional evidence as to what may or may not cause significant harm to a child. Courts are schooled to avoid ‘social engineering’; in Re B, Baroness Hale construed Lord Templeman’s well known dicta in Re KD (A Minor) [1988] AC 806 as ‘public authorities have no right to improve on nature’ [para 179]. Nor do they, yet in this field the danger of seeking to do exactly that is plain to see. ‘Social engineering’ and ‘child protection’ plainly sit on the same continuum; discerning where the line is drawn between the two is far from plain.

In Re B Baroness Hale, after referring to Hedley J in Re L, stated [para 182]:
‘But clearly we do remove some of those children. The difficulty is to identify what it is that tips the case over the threshold. Although every parent, every child, every family is different, and, as Hedley J put it, ‘significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it’, there must be some consistency in the approach of both local authorities and the court.’

Into this complicated mix, we must introduce the impact of resources, or the lack of them. In a neglect case, where permanent removal is a borderline decision, the question of what resources can be introduced into the home to support the parents may be determinative of the outcome. Resources have never been limitless and in the current times they are often scarce. Where, prior to court proceedings, the available support to a family is considered by social services to be insufficient, but a risk of significant harm to the child has been identified, then that risk cannot be left unaddressed. If there were doubt about this prior to the case of Baby P, there is none now. The risk is therefore transferred to the court by issuing proceedings and the case moves on down what might be called ‘the lack of resources tunnel’.

In such a case the court is faced with an application to remove the child because the resources are not there to support a continued placement at home. The court, despite, no doubt, investigating the alternatives, may find itself hemmed in (in the same ‘tunnel’) by the lack of resourced options, with removal as the only ‘safe’ prospect. Whilst I do no more than flag this scenario up, without offering any solution, I fear that it is typical of many cases up and down the land, often heard by the more junior members of the family judiciary, where finding the balance between child protection and family life is a very real and pressing daily issue and where guidance as to just where ‘the line is drawn’ and how the risk may be held is thin on the ground. In this regard, the fresh thinking in books such as ‘Re-imagining Child Protection’ by Professor Brid Featherstone and others (University of Bristol 2014) may offer a way forward.
(2) Post-adoption Contact
My second short point relates to post-adoption contact. When the Adoption and Children Act 2002 came into force there was some expectation that the previous approach to post-adoption contact, which heavily relied upon a ‘closed’ adoption model with, at most, modest ‘letterbox’ contact, might change. In Re P (A Child) [2008] EWCA Civ 535, relying upon the earlier priority placed on post-adoption contact by Baroness Hale in Down Lisburn Health and Social Services Trust v H [2006] UKHL 36, Wall LJ contemplated a possible sea change under the 2002 Act. Now, a decade later, the answer is that there has been no sea change. Even the introduction by the Children and Families Act 2014 of bespoke provisions for contact in adoptions following a placement order [ACA 2002, ss 51A + 51B] do not seem to have moved matters on.

Dr Elsbeth Neil and others at UEA have recently concluded a long term research project on the effects of post-adoption contact ; it should be required reading for us all. Recognising, whilst planning an adoptive placement for life, that the adopted individual will have other ongoing support needs, particularly in adolescence, is very important. Planning for, building on and supporting contact, possibly with relatives other than those in the immediate centre of the care proceedings, can be very helpful in the long term. It goes without saying, and here I do think that there has been a change, that the need for continuing contact between siblings should be prioritised.

I wonder if, in this regard, the old case law based [reaffirmed in Re T (Adoption: Contact) [2010] EWCA Civ 1527] can stand. Is it right that the views of the adopters should hold such sway? In all other respects, those before the court who hold a contrary view on any topic are told that ‘what is best for the child’ must prevail. Why, if face to face contact would benefit a child, not necessarily now but in some time after she has settled down, should the adopter have an effective veto? The new powers under ACA 2002, s 51A are wide. The court may make a contact order at the time of adoption or ‘at any time afterwards’. In the right case, there may well be justification in this power being used for the issue of contact to be set down for review, may be in a year or more after adoption to see if, in some way, provision of contact may provide the adopted person, the soon to be adult, with some bridge back to her roots.

(3) Benefits from focussing on parents
My third short point concerns interventions such as FDAC [the ‘Family Drugs and Alcohol Court’] and ‘Pause’ and it is simply to ask two questions:
(a) Why did it take us so long to get to FDAC and Pause, when they are plainly so beneficial in the right cases?
(b) What other models of intervention should we now be considering?

These are initiatives which, by focussing for a time on the parent, rather than exclusively on protecting the child, offer a way for some of breaking the cycle of vulnerability, addiction, confrontation with authority and failure which is so often the hallmark of families who come back and back before the family courts because, without intervention, they are placing their children at risk.

(4) Special Guardianship Orders
My fourth short point relates to Special Guardianship Orders. SGO’s are now not infrequently put forward, often at a late stage, as a solution which may keep a child in the family as opposed to moving off to an out of family placement. In the right case they have much to offer, but there is a fear, certainly amongst some of those to whom I have spoken, that they may be being over-used in cases where there has been inadequate time to assess the special guardian thoroughly. If problems occur down the line, and further court proceedings take place between family members, they will be private law proceedings and they are unlikely to attract Legal Aid.

The pressure to conclude proceedings within 26 weeks, during which the candidate for special guardianship may not have stepped forward until a late stage, adds to the feeling that, in some cases, making the order in some haste may give cause to repent at a later stage. In this regard the recent beefing up of the Special Guardianship Regulations 2005 by the 2016 Amendment Regulations and associated statutory guidance in January 2017 is welcome, as is the Viability Assessment Toolkit, which was one of the many brainchildren of Bridget Lindley, and which has been recently launched by FRG.

(5) Domestic Abuse
Fifthly, ‘domestic violence’. Because of the focus that I have chosen for this lecture, I have, reluctantly had to reduce other topics for no more than short mention rather than offering the in-depth consideration that they deserve. But, as my aim is in part to stimulate debate, and it is better for this very important topic to be included rather than not mentioned at all, it comes in here.

In short terms, and in the context of the balance between child protection and family life, I really wonder if we are getting it right with respect to domestic violence. From my prospective locked in the ‘audit department’ in the Court of Appeal, I no longer see any of the cases, and so I would readily bow to those who know more directly of these matters.

The prevalence of domestic abuse, and it may not necessarily include direct physical violence, has sadly not abated. Domestic abuse is a feature, I am told, in the majority of calls to the FRG Helpline. This is a topic which, rightly, has priority in No 10 Downing Street with a list of initiatives having been announced during the past few months. But how are we, in the courts, measuring up to achieving the best outcome for children and families?

Whilst resort to a refuge may in some cases be inevitable, surely it is better for children to stay at home under protective measures and with support. I wonder whether courts are using the power to make exclusion orders alongside an interim care order [CA 1989, s 38A] as often as may be necessary. And, in terms of the victim, I wonder if we are as clear in our analysis and our understanding of her joint roles as both victim and parent. Finally, is there a contradiction between the approach taken in child protection proceedings where, in bald terms, the message may be that there is to be absolutely no contact between the perpetrator and the child, as compared with private law proceedings where the emphasis may be upon contemplating some contact notwithstanding that domestic abuse has taken place.

Further, in this context, it may be that the family system needs to make sure that it is up to speed with developments in criminal law where, under the Serious Crimes Act 2015, s 76, it is now a criminal offence for one person who is connected with another person to engage in ‘controlling or coercive’ behaviour towards the other so as to have a serious effect on them.

As with some of the other points that I have raised, I realise that I am asking questions whilst offering no answers, but they are nevertheless questions which, in my view, deserve to be raised.
(6) Independent Reviewing Officers
In terms which are, I am afraid, equally brief, I finally wish to mention Independent Reviewing Officers. Those with a memory of 15 years ago will need no reminding of the ‘starred care plan’ case which went to the House of Lords in 2002 [Re S; Re W [2002] UKHL 10] in which the Court of Appeal sought to ensure that key (in human rights and welfare terms) provisions in a care plan were monitored and brought back to court if circumstances changed. Judicial legislation of that order was struck down by their Lordships, but, in the aftermath, the role of ‘Independent Reviewing Officer’ was established by regulation and guidance in 2005 to act as a guardian of the care plan and, where necessary, trigger a return to court. My understanding is that there have been no occasions when an IRO has brought a case back to court under this provision. Anecdotal accounts from around the country indicate that IRO’s are now rarely seen to be independent of the local authority and I have heard a litany of other causes for concern. If this key aspect of our system is indeed falling short of what was expected of it, what can be done to improve the situation?

A further concern in this respect, I understand, arises from a practice, in some areas, of LAC [‘Looked After Children’] Reviews being held in the foster home, with the result that parents are often excluded from the review meeting.

Three reasons to hesitate:
1. ‘But is adoption still the best option?’
Now I come back to the three “Buts” to which I referred earlier. The first is in the form of a question. A system which has adoption against the wishes of the natural family as an outcome, which is regularly chosen as best meeting the lifelong welfare needs of young individuals, must have confidence that that model of adoption does indeed normally best meet the lifelong needs of individuals who cannot safely be returned to their families during their childhood.

My general thesis that the current balance between child protection and human rights is largely sound is only tenable if adoption is, indeed, the most beneficial arrangement for the young people for whom it is chosen by the courts. My question, in short terms, is “But is it?”. If adoption was once the best outcome for children in these cases, does that continue to be the case today?

Before proceeding further, I need to make clear that this is a genuine question asked by me, and in no manner an indication that I, either as an individual or as a judge, have any concluded view one way or the other. It is, however, a question that I do think should be asked. Adoption has changed in a number of important respects over the past two decades and a number of the characteristics of adoption, and the assumptions upon which it hitherto has been based, have shifted.

As is well known, statutory adoption, introduced by the Adoption Act 1926, provided for the adoption of very young babies given up, with consent, by their mothers. The ability of the court to dispense with consent came later and, as a result Houghton Committee Report in 1972, adoption began to be used more actively as an option in the field of child protection, but the cohort of individuals who were adopted largely remained, as I understand it, very young babies. Prior to Houghton (figures for 1968) less than 10% of adopted children came from the care system.

The use of adoption in child protection achieved further impetus following the publication in the late 1970s of “The children who wait” (Rowe and Lambert) a ground-breaking work identifying the need to make better and more effective long term provision for the children who simply “waited” in long term foster care or children’s homes for periods of years without ever achieving a stable family base during their childhood. Thus, the age at which children were considered as candidates for adoption gradually rose over the years.

Once an adoption order was made, however, both the law and practice went to great lengths to achieve a total separation between the child and his or her natural family. Whilst the possibility of tracing natural family members once the adopted individual became an adult existed, the reality was that many years, if not lifetimes, would go by without any contact being made.

In more recent times social work practice, spurred on by consistent impetus from the highest level, for example the initiative of the Blair Government in 2001 and the coalition in 2011 to increase the number of adoptions, has led to the age at which children may be considered as candidates for adoption regularly encompassing youngsters of the ages of 5, 6, 7 years or older [currently 20% of actual adoptions are for children over 4 years old ].

The older a child is when he or she moves on to an adopted home, the more knowledge and understanding they will have about their life to date and the individuals that make up their natural family. Where that family has been dysfunctional, abusive or dangerous, the more that young individual will have suffered and the more likely it is that some deep-seated long-term harm will have been caused to their psychological makeup and personality. No matter how strong, skilled and loving the placement in their adoptive home may become, it must remain likely that the consequences of their earlier experience will be played out as they come to terms with the sense of their own identity whilst traversing the choppy waters of adolescence in the adoptive home.

The difficulties facing adopters and adopted children in this regard have been made significantly more difficult in recent years with the ever-increasing facility to trace and make contact (in an uncontrolled way) with individuals over the internet or via social media. Dame Eleanor King addressed this topic in detail when giving the Hershman/Levy Memorial Lecture in June 2013 (May I be your Facebook friend?: Life stories and social media [2013] Fam Law 1399). The challenges identified by Dame Eleanor four years ago have certainly not diminished and are likely to increase and become yet more sophisticated as the irreversible march of technological developments in this area of our lives continues.

I have recently become aware, and made contact with, an organisation called ‘POTATO’, standing for the “Parents of Traumatised Adopted Teens Organisation”. The stories that these adoptive parents tell of the difficulties they have encountered in this technologically advanced time in coping with teenagers who have been traumatised by their earlier experiences are striking. They give an account of only having received partial and inadequate information as to the harm suffered by the young people prior to their placement, a lack of therapeutic support in the early months and years of the placement and, when problems erupt during the teenage years, the adopters typically feel viewed by Social Services in the same light as failing “parents” in ordinary care proceedings. Not infrequently, where there is a crisis, resort is had to accommodation under the Children Act 1989, s.20.

It must be stressed that the POTATO parents are but one, relatively small, group. Whether their experience is typical of adopters in general, I do not know. There will, no doubt, be adoptions that have run an altogether smoother course without the need for support and intervention in the teenage years. Additionally, even if the adoptive placement has been troubled, that does not mean that any other form of placement would have been more effective.

Looked at from another angle, if adoptive families are now being used to provide ‘therapeutic’ intervention, then this should be fully recognised in terms of:
(a) The recruitment, training and briefing of adopters;
(b) Provision of support (including from CAMHS) at the time of placement; and
(c) Long-term support on into the teenage years and beyond.

It is, I believe, easy for professionals and courts who are dealing with children, understandably, to focus on the need to protect the child whilst he or she is a child. The welfare provision in the Adoption and Children Act 2002, s.1, however, requires primary consideration to be given to the welfare of the child “throughout his life”. Whilst the determinations made by courts in these cases must necessarily look to provide safe and good enough care for the child day by day during their childhood, the task in hand is, actually, bringing up an individual who is going to be an adult at the end of the process. A major justification for adoption has always been said to be, and rightly so, that the additional lifelong commitment made by adopters is likely to provide a child with the most secure and stable base for their development throughout their childhood and beyond. Our approach in the case law continues to be on the basis that this is so. There has been, however, a radical change in a number of the fundamental elements of our model of adoption in recent years:
– the characteristics of the young people who are now seen as candidates for adoption,
– the degree of support, or lack of it, that is afforded to them and their adopters once a placement has been achieved, and
– the erosion in the hitherto impermeable seal around the adoptive placement created by social media.
These changes are, in my view, sufficient to raise the question of whether our model of adoption continues to be as valuable to each of the individuals concerned as we have hitherto held that it is.

This discussion takes place in the light of our growing knowledge, assisted by academic research (particularly that of Dr Claire Fenton Glynn) to the effect that our deployment of adoption, contrary to the wishes of the family, in child protection cases is rare across the world.

I know that consideration is being given in some circles to arrangements that might fall short of full adoption, yet provide a young person with a sufficient base during childhood, whilst maintaining a bridge with their natural family. Long-term foster care, but with a planned rehabilitation to a member of the natural family in the lead up to adulthood, or the idea of ‘lifelong links’ where a young person who cannot actually live in the natural family is actively encouraged to develop a relationship in late teens with a family member are but two such ideas. In each case the family member might not necessarily be a particularly close relative of the individual.

Data and research on whether or not our model of forced adoption in child protection cases has indeed met the needs of individuals on, indeed well on, into adult life is not readily available. In any event, because of the changes that I have identified that have taken place in the last decade or so, such research based on older adoptions may be of limited value. Data that is available as to adoption “break down” is also unlikely to be of great assistance. My understanding is that the concept of “break down” is given quite a narrow meaning. For example, in cases such as those involving some of the POTATO families, where the young adopted person is received into section 20 accommodation, that is not regarded as a “break down”. If the adopted parents’ relationship breaks down, but the adoptee remains living with one or other parent, then, again, this is not, an “adoption breakdown”, even if the impact of the young person’s presence in the family may have had a considerable contribution to the ending of the couple’s relationship.

Having posed the question as to whether adoption is the best arrangement for these older children who have experienced the adverse impact of dysfunctional family life and abuse, I am entirely clear that it is not for me, and not for judges and lawyers in general, to provide an answer. If, however, the question is a valid one, it can only be answered by substantial research by suitably qualified experts. Such research is, in my view, sorely needed.

2. ‘But how do we know it has worked out alright?’
The second “But” that I believe exists is related to the first. Magistrates and judges up and down the country on every day of the week are making these highly intrusive draconian orders removing children permanently from their natural families on the basis that to do so is better for the child and that “nothing else will do”. But, I ask rhetorically, “How do we know this is so?”

Family judges receive almost no feedback upon the outcome of the decisions that they make. The only feedback that does occur is haphazard and normally arises because the case in one form of another happens to come back to court at a later date. There is no regular system of keeping the judge informed with the progress of events six months, a year, five years, ten years, down the line. I don’t anticipate that any judge who made the adoption orders in relation to the POTATO family cases know what has occurred. The last the judge normally sees or knows of a case is to preside over the happy celebratory hearing that typically marks the making of an adoption order.

Even when an adoptive placement formally breaks down, the judge is not informed. My understanding is that in such cases a formal “break down review” is undertaken by the relevant Social Services department. It would be both unnecessary and inappropriate for a judge to play any part in that review process itself, but a short report of the outcome sent to the judge would, in my view, be nothing but beneficial.

Fifteen years or so ago, the Lord Chancellor’s Department, as it then was, recruited a consultant with business and managerial experience to conduct a short term review of family justice. I well recall his incredulity that the system was paying a high salary to important decision makers, i.e. the judges, yet those decision makers were given absolutely no information as to whether their decisions had been effective; a situation that would be completely unheard of in any commercial management structure. In my mind, I liken the present situation to one where an individual who is learning to become a proficient darts player is instructed to throw the darts behind him, over his shoulder, without any sight of the dart board and without anyone telling him whether he had even hit the wall, let alone the board or the bulls eye.

So my first two “Buts” are related. Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is “necessary” to do so to protect the child, is indeed justified.

3. Transparency: the need to shine a light on what we do
The third “But” is more of a catch all, to which the label “transparency” might generally be applied.

As soon as I mention “transparency” I suspect that you will immediately have focused in on the narrow, but obviously important, topic of whether or not the public and the press should be allowed in to family court hearings. Whilst I have been for years on record as being generally in favour of greater transparency in that context, it is plainly a complicated issue upon which polarised and strongly held opinions are held by people whose views I respect. I am also aware that the President is soon to receive the fruits of a number of consultation exercises in order to consider the next step forward in this regard. I am therefore deliberately not going to say anything more on the topic of allowing public or press access to the family court in this lecture. Not to do so has the benefit of allowing us to consider other aspects of transparency, which is an altogether wider topic than one that simply focuses on the reporting of family court cases.

Whilst the observations that I am about to make are my own, I am extremely grateful to the Transparency Project and, in particular Lucy Reed and Sarah Phillimore, two of the driving forces behind that project, who generously gave time to discuss these matters with me.

‘Transparency’ is much more than simply allowing passive public scrutiny of our processes and outcomes. Those of us in the system need to be proactive in shining a light on our work, both in general and, if necessary, in particular cases, so as to generate a far greater understanding amongst the public of what lies behind the important decisions that are taken about children by the courts, as an arm of the State, in the public’s name.

Delivering effective change in this regard is likely to require innovative thinking “outside the box”. Positive steps are necessary to engage the mainstream media to carry material which accurately describes the family court process. A neutral account of the system, possibly backed up by video content, should be readily available online.

Before descending to detail, it is helpful to step back and take a wide view. There is little point in having a child protection/family justice system which affords proper respect to the human rights of children and family members if those individuals whose rights are to be respected do not know of them or understand how they may achieve access to the justice system in a way that permits them to benefit from that level of respect. Respect for human rights is only likely to be as effective as the ability of the individual involved to engage with the process and gain access to that respect.

Parents who are drawn into child protection proceedings for the first time are unlikely to have any understanding at all of the processes that are about to be deployed, as they will see it, “against them”. Ignorance of the system, both in general terms and with respect to its detailed provisions must massively erode the ability of any individual to take part in the various pre-proceedings and court processes in a way which maximises the potential for their rights to a fair process and family life to be respected. The worse we are at explaining what is involved at the pre-proceedings stage, the less a parent is likely to be able to engage effectively with the process.

That this is so is, in part, due to the high level of ignorance and misunderstanding that I believe there is in the population in general as to the operation of the family justice system. This is part of a wider point that can be made as to the woeful level of public education and awareness as to the legal system in general. The family court, which sits in private, and which is not often the subject of portrayal in television drama to the extent of, say, the Crown Court, is no doubt even less well understood by the general public than other areas.

Unfortunately, the vacuum created by the lack of sound and accurate information about the system provides a space into which ill-informed, and at times deliberately incorrect, commentary and advice can be introduced. Regular ill-informed and deliberately partial press commentary must have an impact upon the perception of the public in general. Targeted “advice” by some semi-professional McKenzie friends and other lay organisations to vulnerable individuals who find themselves the subject of care proceedings has the effect, in some cases, of moving those individuals directly away from engaging effectively in the court process or achieving access to a system which, I believe, would respect their right to a fair process and to family life. In a system which, in current times, puts a priority upon parents being able to accept where their parenting may have fallen short in the past, display insight into what needs to be done for them to live life in a safer way in the future and a willingness to co-operate with the professionals in achieving that change, it is, to put it neutrally, a very high risk strategy for some parents to disengage entirely from the process, refuse to be assessed by independent experts, dispense with the expert lawyers freely provided by the State and, in some extreme cases, flee with their children to Ireland, France or further afield.

From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust shown by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.

I could go on, but the point must be plain. To achieve the benefit of respect for human rights, it is necessary to engage fully with the process within which respect for those rights is embedded. To do the contrary, either through general ignorance or as a result of targeted advice, fundamentally compromises the ability of the system to deliver that respect and is likely to reduce significantly the prospect of that parent achieving any outcome which they might consider to be favourable.

Having flagged up the problem, I do not, in this lecture, offer a comprehensive solution but the following headline suggestions can be made;
(a) significantly raise the level of public education and awareness as to the way in which the family system operates;
(b) ensure that parents are exposed to accurate and sound legal advice at the earliest stage, including any pre-proceedings activity such as a formal social work assessment, suggested accommodation under CA 1989 s.20 or family group conferences.

In an ideal world, my reference to pre-proceedings legal advice would be followed by an expectation that legal aid would readily be extended so that a parent may gain access to bespoke legal advice whenever it is needed. In the current climate, however, we cannot anticipate any extension of legal aid but the absence of legal aid does not prevent the provision of detailed general legal advice, which can be accessed by a parent from other sources.

The Transparency Project website, for example, contains a number of accessible explanations of the law and procedure aimed at the non-lawyer under the general title “Children Law for Dummies!”.

The Bristol Family Court has established a “Family Court Information” website aimed at families who find themselves involved in proceedings. It gives straightforward down to earth descriptions of the process, together with links to videos and other material available elsewhere, for example, the FRG website. This is an excellent resource and if social workers were required to refer parents to it in any case where proceedings were being contemplated, the gap between ignorance and achieving full-on legal representation once the proceedings start may, to an extent, be bridged. I am told that the cost of establishing the Family Court Information website is under £1,000 per court centre. I cannot understand why it has not been replicated by each and every one of the other 40 or so family hearing centres around the country.

Another angle of approach to the same problem is demonstrated by the regular, almost daily, blogs or articles which appear on the Transparency Project website and, elsewhere, by individual bloggers such as ‘Pink Tape’, ‘Secretbarrister’, and ‘Suesspiciousminds’. Such articles may take a general point of public interest, or even more usefully, pick up a news item on a particular family case and comment upon it from an informed perspective, having researched the transcript of the judgment, if available, and any other resource. The purpose is to seek to explain the case, for all to read, in an open and accessible manner.

These innovative and important initiatives are valuable, but they are by no means enough to open up the family court and knowledge of our processes so as to provide the sort of general transparency which I consider is both justified for the public in general and desperately needed for the individuals who find themselves at the focus of child care proceedings. It is not enough for the rest of us to leave the heavy lifting to a handful of volunteer, well-motivated, commentators whose output may or may not be picked up by those who need to read it. There is a need for all of us in the system to consider how we, individually or collectively, can improve awareness of what we do, and how our processes can be effectively navigated in order to achieve full respect for the human rights of all involved. This all involves extra work over and above the day job which is already over borne with demands on the time of each individual, under-resourced and under, almost untenable pressures of time. The response “I am simply too busy to do any of that” is entirely understandable. But, how much of the busy-ness of our respective professional lives is taken up with unpicking the results of steps taken by those who have been ill-informed of what is required of them at an earlier stage. Time spent in making our processes much more transparent and accessible must surely go to reduce the ultimate complexity and burden of cases further down the line as well as achieving the higher aim of improving access to justice.

Conclusion
Who holds the risk, how risk is assessed and how brave or risk averse those who make decisions for children at risk of significant harm may be, are central issues in every child protection case.

Increasingly it seems that, for a range of understandable reasons, social workers are passing the decision making to the courts and it is the judges and magistrates who are being called upon to determine whether children should remain with their families or be placed elsewhere. The increased caseload is not cases of high-end gross abuse involving serious physical injury or sexual abuse; these have always come to the courts. The ‘new’ cases tend to be those involving long-term neglect as a result of inadequate parenting or other slow-burning, but none the less harmful, family dysfunction leading to emotional harm.

As I have explained, I consider that our system of investigating child abuse, protecting children and affording respect for the value of family life is one which has many excellent qualities and one which is likely to strike the balance of risk correctly in most cases.

It is right to stress that the outcome for children who cannot safely live in their families must always be to achieve security and permanence in another home throughout their childhood; the question is how best that can be achieved in each individual case.

The hesitation that I have expressed in the concluding part of this lecture is borne from an awareness that, in various ways and at an increasing pace, the world is changing in terms of the characteristics of some of the young people who are chosen for adoption, the range of problems that they may exhibit in years to come, the ability of those who are adopted and their natural families to trace each other and keep in contact via technology and the need for support for adopters in dealing with the fall-out from these problems often many years down the line.

For 30 years and more, since the move to adopt children from care took off, the courts have accepted and worked on the principle that adoption with little or no contact with the natural family provides the best option for the upbringing of a child who cannot be cared for in her family for her childhood and beyond. The stability and security provided by adoption is said to provide a quality of care which far outstrips any other model that might be available. The change in the adoption landscape that I have described now leads me to question whether that still remains the case for some, at least, of the children for whom we have hitherto taken it as a given. A future which may include reception into s 20 accommodation or even care, placement breakdown, relationship breakdown, unstructured (and possibly unknown) contact with the natural family, upset and confusion seems a long cry from the sunny upland of a happy, settled, secure future with a ‘forever family’ which has been the traditional goal of those making adoption orders to date.

If I am right in raising this question, it cannot be answered by lawyers or judges. It can only be addressed by research, and it would need to be fairly extensive research, into current adoption placements some years after orders have been made and, separately, research into the long-term outcomes for those who were adopted 20 or more years ago.

Judges and magistrates are asked to make these decisions by choosing which outcome is best when measured against the individual’s whole lifetime. Whilst these are decisions taken in child protection proceedings, they are not just to do with child protection. Indeed, I would say, the adoption decision is not even largely to do with child protection. Making an adoption order radically shifts the tectonic plates of an individual’s legal identity (and those of others) for life. That is a very big thing to do in order to protect that individual from harm during their formative years. Is an order of that magnitude necessary? How do we know that it is indeed the best outcome for the young person whose future life is being decided by the court? And, if I am right that we can no longer be certain that it is, how is it possible to say that by making adoption orders, particularly in the middle to low range of abuse cases, we are indeed getting the balance right between child protection and the right to family life.

[END]M

Use of the Inherent Jurisdiction to protect a child in care

A local authority applying for an injunction to prevent abuduction of a child

This post looks at what a local authority can do to protect a child in care if they have good reason to believe that child might be at risk of abduction by his parents. This appears to be an increasingly likely scenario as the amount and kind of information easily accessible on line continues to grow, alongside the number of support groups on social media who encourage parents to take direct action against the ‘evil’ system. One option is to apply to the High Court for an injunction against the parents, by asking the court to apply the ‘inherent jurisdiction’.

 

The inherent jurisdiction of the High Court has historically been described as ‘inexhaustible’ or ‘limitless’ . In essence it can be used to ‘fill in the gaps’ of existing statute and case law. However, use of the inherent jurisdiction over the years has become more restricted. Its application now must be considered in the light of existing statute, case law, and the Family Procedure Rules.

‘Wardship’ is part of the inherent jurisdiction which is most often applied to children but this is now subject to very serious statutory restrictions. Wardship cannot be used, for example, as a way to take children into state care because this would mean by-passing the necessary checks and balances set out in the Children Act 1989.
Section 100 of the Children Act 1989 sets out the restrictions to the use of the inherent jurisdiction. Under section 100(3), a local authority who wants the court to exercise it must first get permission and that will only be given if :

  • the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
  • there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

As the local authority is a corporate body, not an individual person, it cannot apply for orders under the Family Law Act 1996. Therefore, a non molestation order could not be granted to a local authority and seeking an injunction pursuant to the inherent jurisdiction is their only likely  option.

The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common: –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

Practical matters – what court?

The inherent jurisdiction can only be exercised by the High Court so you will either need to be in the actual High Court or before a Judge who is allowed to sit temporarily as a ‘High Court’ Judge for the purposes of making such orders. This is permitted under section 9 of the Senior Courts Act 1981; such Judges are described as ‘having a section 9 ticket’.

You can get an injunction without the other side turning up to court if the matter is really urgent but in most cases the court will be keen to know what efforts you have made to let the other side know about your application. The court will need to be satisfied that the local authority have made reasonable efforts to get in touch; for example by visiting known addresses, telephoning, sending texts and/or emails.

If the parents don’t attend court, the Judge can make an injunction for a short period of time – for e.g. a week – then list another hearing to give the parents more time to attend and respond to the application.

Depending on how long ago the care proceedings were, it may also be sensible to at least inform the guardian about the application. However, it may not be necessary for the guardian to play any role in the injunction proceedings.

What should the injunction say?

Injunctive orders must be:

  • capable of enforcement and
  • must be necessary and proportionate to the risk of harm identified.

So be careful of vague orders or ones that go beyond what is needed to keep the child safe. Much will depend on the facts of the particular case before you and the risk of harm faced by the child. For example, in Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam). Keehan J considered the case of Re J (A Child) [2013] EWHC 2694 (Fam) where the President observed that court had a duty to consider whether the terms of the proposed orders were fair, necessary and proportionate to the facts of the case and capable of being enforced.

Keehan J concluded in the case before him that it was appropriate in all the circumstances to make very wide injunctive orders to prevent child sexual exploitation.

The inherent jurisdiction is clearly wide and versatile enough to compass prohibiting respondents from accessing a wide geographical area. For example, consider the decision of the then President of the Family Division the late Sir Nicholas Wall, in CW & Ors v. TW & Ors [2011] EWHC 76 (Fam), who made an order banning the respondent from the country of Wiltshire ‘save for specified purposes’ .

Every injunction should have the following paragraphs included

NOTICE TO THE RESPONDENT [Name here]
You should read the terms of this order very carefully. You are advised to consult a solicitor as soon as possible.
An application was made on [this date] by the local authority to the Judge. The Judge heard the application in the absence of the Respondent (if applicable) and read the evidence in Schedule 1 to this order (set out what evidence the Judge considered here)

Variation and discharge
The Respondent or anyone notified of this order may apply to the court at any time to vary or discharge the order (or so much of it that effects that person) but anyone wishing to do so must first inform the applicant local authority

Communication with the Court
All communications about this order should be sent to [the court that made the order]

PENAL NOTICE
To [the Respondent] You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court and you may be sent to prison, fined or your assets may be seized.
This penal notice is attached to the following paragraphs of this order [set out appropriate paragraphs]
Any other person who knows of this order and does anything which helps or permits the Respondent to breach the terms of this order may also be held in contempt of court and may be imprisoned, fined or have their assets seized.

There is NO power of arrest attaching to an injunction under the inherent jurisdiction

It seems clear now that this cannot be done, which does weaken the usefulness of the injunction. If it is breached, the local authority must apply to enforce it in the usual way, by asking the court to issue a warrant for the parent’s arrest for contempt of court. The parent will then be bought to court and asked to explain why they breached the order. This is provided for in the paragraph relating to a penal notice, set out above.

In Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam) Keehan J considered the relevant authorities relating to attaching a power of arrest to such an injunction and concluded that this was not permissible. He refered to the judgement of the Court of Appeal in Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538 which had not been drawn to the attention of courts in previous cases and thus had been over looked.

Keehan J cited the leading judgment of Ormrod LJ:

for my part I would hesitate a very long time indeed at this stage in the evolution of our law to introduce or invent a wholly new remedy in wardship and, having regard to the problems that have arisen under s.2 of the Domestic Violence and Matrimonial Proceedings Act 1976 and the difficulties that are inherent in that, I should be even more reluctant to extend, by some form of analogy, a power in a judge in wardship to grant a power of arrest. In fact, I think it must be constitutionally fundamental that only Parliament or the old common law can create a power in one citizen to arrest another citizen.

For my part, I cannot see how a judge could have power, other than a statutory power to attach provisions such as this to an injunction… Of course it would be great comfort, not only to the mother in this case but, I should think, to the judge himself to feel that there was this further protection for this child. But that is not sufficient ground for inventing what is a most far-reaching interference with the liberty of the subject, the father, and putting a quite extravagant power, it seems to me, in the hands of either the tipstaff or constable in question.’

The Woeful State of Our Debate: the Social Work Tutor

This is a post by Sarah Phillimore

The Social Work Tutor is an anonymous practising social worker who runs a very popular Facebook site. At the time of writing it has 352,016 ‘likes’.  The site purports to offer “News, comment, debate, education and humour for the worldwide Social Work community”.

There is also a website which offers ‘shopping’ opportunties where you can buy T Shirts for £16 and a variety of mugs for £7.

I will make it very clear at the outset that it is obvious that Social Work Tutor has a powerful voice in the social work community, and he hasn’t gained that by offering nothing of worth. There are obviously many who take comfort and inspiration from what he posts, who enjoy his funny or inspirational pictures and quotes.

However, I have noted a clear trend over the past year for a number of posts and comments that appear to be promoting a very ‘them and us’ divisive line about social work. The Social Worker is recast as ‘hero’, or metaphorically battered and bruised by the heavy demands of the job, requiring our ‘pity’ because they have to interact so frequently with dangerous parents.

I, and many others,  have felt uncomfortable by this narrative. Social work – like the law – is not something you ‘do’ to people. It is not about treating the people who come into contact with social work (or the law) as worse or lesser beings. That is a very dangerous road to go down, as the lessons of history repeatedly show.

But I, and many others, support entirely the right of others to have a voice, to speak up, to argue for what they believe in. All that is asked in return is that they are willing and able to explain their position if challenged. Because this is how we grow and develop – not just our ideas but as people. I am now a much better lawyer (and a better person) since I started this site and began to let myself be open to challenge. If you start from a position of honesty and integrity, challenge is nothing to be feared. It is to be welcomed. If your position is not quite as honest and authentic as you hoped, why would you shy away from efforts to understand this?

On July 23rd 2016 I published on this blog a guest post from a social worker who wished to remain anonymous, called ‘Social Workers speaking out – what should they say?’ This was mainly a comment on an earlier post by Social Work Tutor in June 2016 on his site, about Ben Butler as an example of a ‘monster parent’ from whom children must be rescued (this particular post caused significant unease for many and has now been deleted). I published the guest post because I thought it was a fair and balanced piece about something very important; how social workers speak out and what can they say. Their voice is crucial in this debate and not often heard, due to restrictions often placed on the ability of social workers to engage with social media by their employers.

The response from Social Work Tutor was immediate – I must remove the post or he would take legal advice regarding defamation. This lead to my publishing this post ‘So you’re thinking of suing me for defamation?’ on July 24th as – sadly – Social Work Tutor is not alone in thinking that threats of legal action are sufficient to end debate.

I make the point again, as it doesn’t seem to be getting through. It is NOT ‘defamation’ if someone says something about you that you don’t like, or find annoying. You must show ‘serious harm’ to your reputation by the alleged defamatory comment. Truth is a defence to defamation. It is going to be very interesting to know the result of the Jack Monroe versus Katie Hopkins legal action, arising out of insults posted on Twitter, as I am hoping for a clear judgment from the court to reinforce what I already know.

Social Work Tutor and I exchanged some emails and he appeared to reach an understanding; that there was nothing defamatory in my post and I would not be removing it. I did however remove one sentence at this request. There, I thought the matter had come to and end.

But sadly not. From Twitter exchanges on 27th February 2017 it became clear that Social Work Tutor’s understanding had been either illusory or very short lived. He described my July guest post as a ‘shocking’ example of the ‘lack of decency’ in the debate around social work then blocked both my personal and CPR Twitter accounts.

I remain delighted to offer Social Work Tutor a right of reply to this or any other post of mine. I am always willing to listen to and to respond to requests to edit or remove material. Threats of legal action however are highly unlikely to achieve anything other than to reinforce my position and exacerbate my concerns about the person making them.

 

Conclusions

I am not the only person who has had such an experience and I have been contacted by others who are concerned by the reaction of Social Work Tutor to what they have seen as genuine and reasonable comment. It is not for me to comment on their experiences here – unless of course they would like me to – but what I have heard has caused me serious concern.

What I would hope to see from anyone who claims to be an important or significant voice in their field, is that they respond to challenge by seeing it as an opportunity rather than a threat. It isn’t difficult to distinguish the grunting of trolls who just want to destroy, from someone who genuinely wants to understand more about why you say what you do. If someone insults your appearance, your sexuality or uses foul language – block them, move on, they aren’t worth your time.

But if someone raises a genuine concern and you respond immediately with threats of legal action, or demands for an apology or silence – what are you? And what are you trying to do?

I think this is particularly important when someone anonymous professes to be a voice of a particular profession and who appears to be getting some financial advantage via their activities by selling mugs and T shirts.  Just what is being protected here?

I’ll leave you with the wise words of Ryan – a great example of nominative determinism…

Ignorance is no defence: The dangerous activism of Justice for Families

This post is my formal complaint about the activities of the organisation Justice for Families, which I made to its Chairman John Hemming on 8th January 2017. My name is Sarah Phillimore and I am a barrister specialising in child protection law. My concerns about Mr Hemming and his organisation are long standing. You can read more here and here.

I gave Mr Hemming an extension of time until 4pm on 21st February 2017 to respond to this complaint. He replied, via Twitter, that he would not. I thought six weeks was more than enough time to respond to such serious concerns and I made it clear that, in the absence of any substantive response from him,  I would publish the complaint today.  

 

Why am I doing this? What’s the point? Who cares?

Because I don’t see what other choice I have. I cannot ‘unknow’ what I know about this group. It’s probably pointless, I concede because no one seems to care. I can speculate about why that is. When I have tried to get journalists interested in this, they respond sadly ‘it’s too complicated’ (if I’m lucky. If I’m not, they simply ignore me).

I suspect ‘it’s too complicated’ is convenient shorthand for something like this “John Hemming is wealthy and litigious. I don’t want the trouble. Plus, I can’t really get too worked up about the kind of people who get mixed up in this. They seem quite unappealing; poor, drunk, mentally ill, can’t look after their kids. Why bother with them? “.

I appreciate that I cannot make people take an interest in or care about what JFF get up to or the people they hurt. I really don’t understand why so many don’t seem to care,  why many more people are not angry about the exploitation of the vulnerable and the children put at risk of harm.

I also appreciate that the existence of such groups and the fact that so many parents are desperate enough to turn to them, says nothing good about the current state of the child protection system. It is a tragedy that vulnerable parents believe they have no where else to turn; they are between the rock and the very hard place. The blight of the unscrupulous McKenzie Friend is serious and real, as seen in the recent Victoria Derbyshire programme.

All I can do is all I can to spread awareness about the nature and the extent of the problem we face. If, with that knowledge, you chose to do nothing then that is a matter for your conscience.  Mine is clear.

If JFF attempt to involve themselves in any case where I am instructed, I will object. And I will explain very clearly why.

 

Letter of complaint sent January 8th 2017

Parts of this letter of complaint have been removed prior to publication to ensure compliance with section 12 of the Administration of Justice Act 1960 which prohibits publication of matters relating to care proceedings, without permission being obtained first from the court. 

Dear Mr Hemming,
1. On 2nd January 2017I asked you via the public electronic communications network Twitter (hereafter Twitter) where I could direct a formal complaint about the activities of the organisation Justice For Families (hereafter JFF) , you as its Chairman and its advisers Tim and Julie Haines. At 22:58 on 2nd January 2017 you replied to say ‘me’. On 5th January 2017 I replied to say that I would make a formal complaint, if time permitted by 6pm on Sunday 8th January 2017. You replied to say that you would respond to that complaint but you could not promise a timescale.

2. The link to the JFF website is no longer valid and I assume therefore this website has been taken down. However I note the Facebook Group ‘Stop Forced Adoption’ is described as the official Facebook Group of Justice for Families Ltd  Registered Company No. 06645051.

3. Information from Companies House shows that JFF company was incorporated as a private limited company on Monday 14th July 2008.  Its registration status is ‘active’ and the company engages in activities of patent and copyright agents and other legal activities not elsewhere classified. The registered address is Osmond House 78 Alecester Road Birmingham B13 8BB, which is the address to which I will send this complaint. I will also send a copy to you via email to john@hemming.email, which is the email address you provide on your blog 

4. Your confirmation that I should send a formal complaint about the activities of JFF and its members/advisers supports my assumption that you remain the Chairman of this company and the frequent public denouncements you make of the family justice system represent the position adopted by JFF, its advisers and members.

5. I am also sending a copy of this complaint to the Designated Family Judge at the Bristol Civil Justice Centre, being HHJ Wildblood QC. [REDACTED]

6. I shall set out below:
a. The time by which I request a response;
b. My proposed actions if your response is not forthcoming or is inadequate;
c. How I would like you to respond to this complaint;
d. a summary of my complaint and
e. more detailed description of the evidence upon which I rely to support that summary. Any reference I make to a publication made on any public electronic communications network can be supported by a screen shot of that publication, if required.

I request a response to my complaint by 6/2/17.
7. If you do not respond by that date, or I consider that your response is inadequate, I will consider:
a. Making formal complaint about serious misconduct relating to the activities of a private limited company;
b. Make formal complaint to providers of the public electronic communications networks such as Twitter and Facebook and request that the JFF Facebook group is removed or suspended. I note in particular that the JFF Facebook group is currently soliciting copies of court judgments from parents without any reference to permission from the President of the Family Division to conduct such ‘research’

How I would like you to respond to this complaint.
8. The remedy that I seek is that you or any person purporting to operate with the approval of JFF;
a. refrain from further publication of unevidenced, inflammatory or demonstrably false denigration of the family justice system; and
b. refrain from any further publication of any suggestion that parents facing care proceedings should leave the jurisdiction because they cannot secure a fair hearing and
c. remove Tim and Julie Haines forthwith as having any official connection or remuneration from JFF; and
d. take down the ‘Stop Forced Adoption’ Facebook Group.

Summary of my complaint

9. I make this complaint as a family law barrister who for many years has been seriously concerned by the activities of you and your organisation. It is clear to me that the activities of JFF can be criticised under two broad headings
a. Having a serious and detrimental impact on the proper working of the family justice system; and
b. Putting numerous vulnerable parents at risk of or suffering actual financial or emotional exploitation.

10. There are a variety of activities I could cite in support of these contentions. To provide an exhaustive list would make this complaint disproportionately and unhelpfully lengthy. I therefore propose to restrict the substance of this complaint to the following 3 examples to support the broad headings of complaint set out above. However, I must stress that what follows is not intended to be an exhaustive list of reasonable complaints that could be raised against the activities of JFF and I reserve the right to refer to further and better particulars, should this become necessary at any future stage.

JFF consistently, inaccurately and unfairly denigrates the competence and integrity of those working within the family justice system.

This risks undermining the rule of law and the Article 6 ECHR rights of parents in care proceedings. JFF promotes the message that parents will not get a fair hearing in care proceedings in England and Wales: You have stated since at least 2014 on a variety of platforms, that parents should not to engage with their lawyers in care proceedings. You have stated that publicly funded family lawyers are not independent and that it is not possible to get a fair hearing in this country.

JFF facilitates or encourages vulnerable parents to leave the jurisdiction and thus puts them and their children at serious risk of harm.

As a corollary to your frequently stated position that it is not possible for parents to have a fair hearing in care proceedings, JFF has directly facilitated parents leaving the jurisdiction by providing accommodation in the form of a caravan or several caravans at the property in France where Gena Jones lives, despite taking no or no reasonable care to ascertain if Gena Jones is able to provide a safe environment. You know or ought to know that her current partner was responsible for putting Gena Jones in hospital by beating her as she confirmed this in a newspaper interview in 2015.

The JFF ‘Advisers’ Tim and Julie Haines are not fit or proper people to offer advice or assistance to vulnerable parents in care proceedings.

Both have been either abusive or threatening on social media, are prepared to publish false statements about the working of the family courts, encourage parents to make unmeritorious appeals and to share confidential documents. They have wholly failed to be transparent about the amounts they charge parents – there is no published information I can find to confirm what JFF charges parents for any assistance they give.

Evidence in support of the assertions set out above.

11. With regard to the public denigration of the family justice system in general and family lawyers in particular your behaviour in this regard has been longstanding. The examples listed below of your public pronouncements when Chairman of JFF are certainly not intended to be exhaustive. I can provide examples of many more from 2008 to date if required.

12. In 2013 you made an allegation in Parliament about the collusion of family lawyers in a particular case. It was reported here in the Express newspaper :

In a highly unusual accusation, John Hemming said lawyers for Jacque Courtnage colluded with Derbyshire County Council to prevent her analysing a document he believes would have cleared her of abuse allegations.

13. You continue to assert that lawyers who represent local authorities cannot also represent parents as by representing local authorities they have lost their independence and are in breach of their professional duties. A solicitor, Giles Peake,  attempted to explain to you in 2016 why this was not so, and he commented in the following terms:

Why is this important? Why pay attention to the ramblings of a former MP whose credibility has been demolished by the Courts? Because a lot of desperate and unhappy people do pay attention to him. His advice, including recommending to parents fleeing abroad to frustrate care proceedings, has been acted upon by people. If Mr Hemming now suggests trying to challenge lawyers on the erroneous basis of conflict of interest, or worse, that people should consider a prospective lawyer to be tainted with conflict of interest if they have ever acted for the other side, he is damaging people’s interests, stupidly and unnecessarily.

14. The article in the Independent on 12th January 2014 states with regard to yourself:

 “An MP has advised parents suspected of abusing or neglecting their children to leave the country if they fear being denied a fair hearing in the family courts”. It is written with reference to your appearance on the BBC Panorama Programme ‘I want my baby back’ which aired on 13th January 2014.

You are quoted on the BBC News website on 13th January 2014 in this way:

He said the process was so unfair that parents should leave the country to avoid social services and the courts. “All the cards are held by the local authority. It has large resources to fight the cases – it does all the assessments,” he said. “My advice to people – if they can afford it – is just to go abroad. You can’t get a fair trial here, because you can’t rely on the evidence being fair.

15. I have commented about your activities in encouraging parents to leave the jurisdiction and go to Gena Jones house in the following post, published on my website www.childprotectionresource.online on September 17th 2016.  I have repeatedly asked you to explain the circumstances in which women are sent to Gena Jones; you have repeatedly failed to reply.

16. The comments on this post are interesting. Gena herself confirms:

“John hemmings have put families in my direction for advice” and “John hemming helped pay towards a caravan that is in my garden that some parents stay but often they moan that they want to stay in my home and get to sleep in a real bed. He’s put about 4 or families I think for advice and it’s advice about the laws in France i.e. Social services rights how to look for a place to rent every day living stuff”. Gena confirms that many of those who come to her are vulnerable, having substance abuse issues and mental health difficulties: “Many of the parents who came to mind could not cope with the culture shock the isolation as there’s no shop or towns for miles and many have issues i.e. Drug drink and mental health !”

17. I have been sent extremely worrying information via Facebook from a number of mothers who say they stayed at Gena’s. This includes allegations of serious verbal abuse and money and possessions being taken from them. I am told the French police have been involved. I have been sent pictures of Gena’s partner posing with what looks like an assault rifle. I have been sent copies of various messages posted by Gena on social media sites in aggressive terms and using extremely foul language.

18. Tim Haines seems confused about whether or not JFF have given advice to people about staying or not staying with Gena. He confirmed on 19th September 2016 there had been a JFF meeting to discuss Gena because they were aware that a JFF client had gone to Gena’s ‘expressly against JFF advice’. However, he then claimed that JFF did not give such advice to any parent.

19. Tim Haines has made further abusive and threatening comments online following my publication of the blog post referred to above.
a. On the blog post itself he commented: “The only other comment I intend to make is that the rest of this article is stuffed with inaccuracies and half-truths, and a barrister ought to be ashamed of themselves for concocting such a stack of bollocks – unless, of course, they are so used to doing that for a living that they didn’t even notice!”
b. I have been sent copies of messages Tim Haines sent to one of the women who alerted me to the situation at Gena’s. I consider his message to be abusive and threatening and it confirms that JFF had serious concerns about the situation at Gena’s. He says: ‘I sent you a private message and you passed it to Sarah Phillimore? How fucking dare you! You just did yourself big damage’; further
c. ‘Because Phillimore has posted a whole page of bullshit blog attacking JH. YOU are doing more harm than good. Contacting Phiullimore (sic) is NOT the way to get Gena shut down’

20. With regard to how the Haines are paid for what they do; Tim Haines claims that he and Julie Haines claim only ‘out of pocket expenses’ but refuses to elaborate on what this means or how much is usually claimed (see Tweet 19/9/16 09:19).However I received a message from one parent via Facebook complaining that Tim Haines ‘has slated me for £1,500’ (tweet 20/09/16 23.03). Tim’s reply is ‘bollocks’ (Tweet 20/09/16 23.22). Tim Haines states ‘I’m paid a small wage which covers the work for JFF clients. At least I have goodness in my heart’ (Tweet 19/09/16 12.26) but refuses to elaborate on how much he is paid or by whom. He calls me ‘twisted’ and ‘an idiot’ (19/09/16 12.52/19/01/16 12.57) then ‘stupid, deaf, illiterate’ (19/09/16 13.03) and someone who made a career out of ‘wrecking families’ (Tweet 19/09/16 10.46).

21. Worryingly, he states that JFF is a small organisation ‘and can only assist a small fraction of the thousands of parents who approach us’. (Tweet 19/09/16 14.07).

22. Julie Haines [REDACTED]

28. I further noted the following examples of how Mrs Haines choses to express herself on a Facebook page that is open to all:
a. 25.12.16 ‘To all social wankers hope you enjoyed having a day off child stealing Happy Christmas!
b. ‘Sunday’ ‘from us three here to all of you. Let’s keep getting the bastards. Make 2017 count. We’ll still be here with you. ‘
c. ‘Saturday’ ‘Forced Adoption is ‘not exceptional in law’ I believe this is the key to getting the child stealing Nazi’s/Marxists stopped’.

29. In light of this kind of behaviour from Mr and Mrs Haines, it is very alarming to note that the JFF Facebook is publishing the following statement urging parents to send copies of court judgments to them:

JFF is asking all parents who have a Placement Order Judgement from within the last six years, if they could kindly send copies by email to (pennylilac@yahoo.co.uk). We want to reassure you that it is completely confidential and that these can be sent in confidence. The purpose of this request is to accurately assess whether or not children are forcibly adopted legally e.g: if dispensation to parental consent has been dispensed correctly. The stats and information we get from this will be given to John Hemming to use in Parliament and possibly for a media campaign regarding numbers of children illegally kept under a Placement Order and or Adopted’.

30. I consider that it is highly inappropriate to encourage parents to send to the Haines such documents. Not only is this a potential contempt of court, I raise serious doubts about the Haines’ abilities to fairly assess the quality of decision making, on such limited information and with such a clear pre-stated bias towards an assumption that children are ‘illegally kept’.

31. It does not appear that JFF have sought any necessary permission from the President of the Family Division to conduct any legitimate ‘research’ in this way and therefore such solicitation of such sensitive documents must cease immediately.

32. I shall await your response with interest.

 

Is it the end of the road for HRA claims for misuse of section 20 accommodation?

Not in principle – but in practice, maybe.

This post is the opinion of Sarah Phillimore about the impact of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017) upon claims for damages for breach of human rights in cases where children have been accommodated under section 20 of the Children Act 1989. This case has provoked significant comment from a number of lawyers and social workers – see here from Suesspcious Minds and here from Celtic Knot.

Sarah does not agree that this case means that lawyers can endorse any radical departure from existing good practice guidance – it will still be important to establish that parents have the capacity to understand what is being proposed by section 20 accommodation. Failure to do will continue to put local authorities at risk of acting disproportionately in breach of a family’s Article 8 ECHR rights. However, the Court of Appeal sound an interesting warning about the likely quantum of damages in such cases. For legally aided claimants, who will find the statutory charge bites upon any award of damages, this may well indicate the beginning of the end for viable HRA claims for the publicly funded.

FACTS

The 8 children of Mr and Mrs Williams went into foster care for 2 months in 2007 after the eldest child said he had been beaten and the police found the family home in a very bad condition. Initially, the children were taken into police protection. This is lawful for no more than 72 hours. On expiry of that period, the LA removed the children into foster care as the parents were subject to bail conditions that they could not have unsupervised contact with the children.

The Williams initially signed an agreement for the children to be accommodated under section 20 of the Children Act 1989. Thus, they retained parental responsibility and it should have been made clear to them that under section 20(8) they could remove their children from foster care at any time. If the LA did not think it was safe for the children to be removed, their only lawful option would be to apply to the court for either an emergency protection order or an interim care order.

It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and there was no doubt that Mr Williams’ lawyer at least understood the relevant legal framework. The lawyer wrote to the LA saying that Mr Williams would consent to accommodation until the 23rd July 2007. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams had the right to apply at any time to vary these bail conditions, and it was clear that their lawyers knew this, as they referred to it in correspondence. However, the Court of Appeal felt it important to note that it was likely that the Williams wished to work co-operatively with both the police and the LA and not get involved in contentious proceedings.

The police did not vary the bail conditions until the 6th September and the children returned home five days later.

There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?

In 2015 the court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won. Why then did the Court of Appeal agree the first instance decision was wrong?

At first instance, the parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin).
In the Nottingham case, the LA were held to have acted unlawfully; their argument that they were justified in removing a baby without a court order because the mother knew of their plan and ‘did not object’ was rejected in the strongest terms as an unacceptable and dangerous conflation of ‘absence of objection’ with ‘actual consent’.

The Coventry case considered the issue of the capacity of a mother to give informed consent to the removal of her new born baby and offered general guidance to ensure that social workers had properly considered that the consent offered is real. However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them..

The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N :

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

The Court of Appeal commented that the case law they had considered set out good practice guidance which had been offered prior to the Williams’s children going into foster care It was therefore necessary to examine what the law said (see para 62 onwards). The key consideration was section 20(7):
‘(7) A local authority may not provide accommodation under this section for any child if any person who:
(a) has parental responsibility for him; and
(b) is willing and able to:
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.’

The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.

The Williams could not have offered accommodation. The statutory test was not whether they offered consent but whether they actively objected. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed clear view that £10,000 was too high in any event.

ANALYSIS

I do not think that this case has any significant impact on the principle of HRA claims. The Court of Appeal are quite right to re-direct our attention back to the explicit words of the statute, where the word ‘consent’ is indeed not mentioned. However, this does not mean that the general good practice guidance offered in other cases becomes irrelevant, and the Court of Appeal expressly recognise this.

This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object. Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

However, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice, given the impact of the statutory charge on damages awarded to a legally aided complainant. I agree that the amount of damages awarded in such cases does appear to be creeping ever upwards – see this post for further discussion of damages awarded – and this is not in keeping with the European jurisprudence which makes it clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. ‘Just satisfaction’ can be provided by a simple declaration of wrongdoing.

Therefore I think its an interesting case with some useful discussion of the distinction between ‘active objection’ and ‘passive consent’ – but I do not agree it is the radical ‘game changer’ that some other commentators suggest.

This post first appeared on the Transparency Project website. The Transparency Project will revise its Section 20 Guidance in light of some of the discussions in this case.

Significant concerns about the Children and Social Work Bill

I am grateful to Rodney Noon for permission to re-publish here his December Editor’s Blog on the exemption clauses in the CSW Bill. This originally appeared on the Seen and Heard pages of the Nagalro website – and I think it needs the widest possible audience. 

POWER TO TEST DIFFERENT WAYS OF WORKING: WHERE ARE WE NOW?

The Government’s controversial clause 29 to the Children and Social Work Bill was deleted in its entirety, by a significant majority in the House of Lords. The Bill has now moved to the Commons and the Children’s Minister, Edward Timpson, is proposing an amendment which would reintroduce the provisions in what he describes, in a letter of 7 December 2016, as a ‘significantly amended’ form. What has changed from the original clauses and is it enough to make the provisions acceptable?

Scope of the Provisions

Living in the countryside, we sometimes have field mice coming into the outbuildings. If someone called round, claiming he could get rid of them, but carrying an assault rifle, plastic explosives and a flame thrower, I would be alarmed. I doubt if that alarm would be reduced by assurances that these things were not going to be used. The question, ‘why are they even here?’ would not have been answered. This was one of the problems with the original provisions of the Bill. It had the capacity to suspend vast swathes of both primary and secondary legislation. The Government has, to this day, not satisfactorily explained why it should even want to have such far-reaching powers.

The new clause has exactly the same starting point as the old clause 29, namely, that it covers ‘a requirement imposed by children’s social care legislation’. There follows the self-same definition of ‘children’s social care legislation’ that we found in the old version, namely:
‘any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;’
together with ss23C and D of the Children Act 1989, the Children Act 2004 and any secondary regulations and such made under any of those Acts.

The first task therefore, has to be to look at what is actually in Schedule 1. Here is the list as it currently stands, insofar as it relates to children:
• Children and Young Persons Act 1933 Parts III and IV
• Children and Young Persons Act 1963 Part I
• Children and Young Persons Act 1969
• Adoption Act 1976 (transitional and saving provisions only)
• Children Act 1989
• Adoption (Intercountry Aspects) Act 1999 sections 1 and 2(4)
• Adoption and Children Act 2002
• Children Act 2004 sections 9A and 13 to 16
• Children and Young Persons Act 2008 Part 1
• Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 92 (functions in relation to a child remanded to local authority accommodation)

The schedule contains many other pieces of legislation which are, at least primarily, concerned with the care of adults.

Although Schedule 1 has only a small number of sections from the Children Act 2004 included, the proposed provisions of the Bill would bring the whole of the 2004 Act within the scope of the potential exemptions.

On top of these, any statutory instruments, made under these pieces of legislation are susceptible to suspension. The list will be rather larger than the human mind can comfortably accommodate.

It was the sheer breadth of the potential exemptions which caused such consternation amongst many. Was it just rushed, or lazy drafting? Schedule 1 to the Local Authority Social Services Act 1970 also includes disability and mental health statutes. Would a list of legislation specific to the use of these powers have been too much to ask? The overall impression is that the draftsman wanted to make his work as impenetrable as possible. A much better way of drafting the Bill, if clarity was desired, would have been to list the specific provisions from which exemptions might be given. Debate could then have centred around the merits of those individual sections or statutory instruments. Instead a ‘blank cheque’ is sought and an injured innocence expressed, when there is vociferous opposition.

Having initially proposed the same wide-ranging possibilities for exemptions, the new clause offers to exclude various provisions from its scope. They are:
• Section 17 Children Act 1989 (Duty to provide services to children in need)
• Schedule 2 (Part I) Children Act 1989
• Section 20 Children Act 1989 (Provision of accommodation for children in need of it)
• Section 22 Children Act 1989 (Duty to promote the welfare of looked after children)
• Section 47 Children Act 1989 (Duty to make enquiries and take action to promote the welfare of children at risk)
• Section 10 Children Act 2004 (Promoting co-operation to improve the wellbeing of children)
• Section 11 Children Act 2004 (Making arrangements to ensure that regard is had to the need to safeguard and promote the welfare of children)

Those seven provisions are the ‘comfort blanket’ which is offered to those who oppose the legislation. Are they sufficient? The first test has to be to carry the proposal to its logical extreme. A ‘stress test’ if you will. What would the world of children’s social care look like if that were all that were left? A fearful sight, you may think.

Now, those who promote the clause will say that this is an unfair test because there are safeguards in sub-clause 1 which require any suspension to be for the purpose of promoting the wellbeing of children and the regulations giving exemptions must be approved by Parliament and subject to consultation. All of this is true. However, since one of the objections to the initial clause was its breadth of application; the sense that everything was ‘up for grabs’, I would argue it is a legitimate test to perform. The retreat from the old clause 29 on this issue has been a very small one, with the provisions protected, probably never seriously considered for exemption in the first place.

What remains on the ‘at risk’ list? To list every set of regulations and each section of each Act would tax the patience of writer and reader alike, but some examples, picked at random, might inform the debate.
• Section 14F Children Act 1989 (special guardianship support services)
• Special Guardianship Regulations 2005 (Supporting s14F above)
• Sections 17ZA to 17ZC Children Act 1989 (young carers needs assessments)
• The Young Carers (Needs Assessments) Regulations 2015
• Section 21 Children Act 1989 (provision of accommodation for children in police protection or detention or on remand)
• Sections 22A to 22G Children Act 1989 (local authority duties to provide accommodation and maintenance for looked after children). It should be noted that only the general duty to safeguard and promote the welfare of looked after children under section 22 is protected from suspension. The more detailed duties, inserted into the Children Act by the Children and Young Persons Act 2008, are not subject to any protection against suspension.
• Section 23ZA Children Act 1989 (duty of local authority to visit looked after children and arrange for them to receive advice, support and assistance)
• Section 23ZB Children Act 1989 (independent visitors for looked after children)
• Section 23CZA Children Act 1989 (staying put arrangements)
• Section 25 Children Act 1989 (restrictions on the use of secure accommodation)
• Children (Secure Accommodation) Regulations 1991
• Section 25A Children Act 1989 (appointment of independent reviewing officer)
• Section 34 Children Act 1989 (local authority duties to allow contact with children in care).

Despite the Secretary of State’s statement that the Bill is compatible with the Human Rights Act, it has to be said that this sits uneasily with article 8.
• The whole of Schedule 2 Part II Children Act 1989, which not only set out the duties of a local authority towards looked after children, but also forms the basis of a substantial body of regulations including provisions for the local authority to supervise and inspect foster carers and the accommodation which they offer. Part II includes paragraph 15 which imposes a duty on a local authority to promote contact between a looked after child and his family.
• Section 49 Children Act 2004 (payments to foster carers)
• Care Planning, Placement and Care Review (England) Regulations 2010. These regulations are of crucial importance to ensuring that children are placed safely and include, amongst much else, the regulations dealing with the placement of children in care with parents and the regulatory framework for IROs.
• Fostering Services Regulations 2002
• Section 4 Adoption and Children Act 2002 (assessment for adoption support services)
• Adoption Support Services Regulations 2005

Those who propose the reinsertion of these provisions into the Bill, must surely explain, in plain, practical terms, why they might wish to have the power to suspend each of these provisions (and many more). If the answer should be that they would not want to suspend, for example, the staying put arrangements, then they must explain why they, notwithstanding this, seek the power to do something which would be contrary to the best interests of the child. It is a position which seems to defy logic.

I would suggest that no list of safeguards about consultations, purposes and parliamentary approval can save this amendment from the fatal flaw which sits at its very heart; namely that it potentially authorises steps which could not, under any conceivable circumstances, be in the interests of the child. Once it is accepted that there are provisions in the clause’s net which should never be suspended in this way, the whole provision becomes indefensible.

Risk and Informed Consent

The heading of the proposed new clause is significant, saying that it is the ‘power to test different ways of working’. Any test carries with it risks that it may not produce the desired outcome. If that were not the case, the test would not be needed. These tests however, will be carried out on real people; real parents and real children. If we were dealing with a trial of a new drug, this would be hedged about with provisions to ensure that only those who wished to be involved were subjected to the test and that their consent was fully informed, both as to benefits and risks. Such provisions are totally absent from these proposals. How is the seven-year-old child to give a valid consent to the risks of a test? If a local authority obtains an exemption then all the children in its jurisdiction will be the subjects, whether they agree or not. They will have no individual say in the matter.

Our path to the current system for child protection is littered with casualties. Most of the provisions which we now have, are there because children were neglected, injured or died. The state’s track record as a parent is far from unimpeachable. If a test turns out to be misconceived and children are in fact harmed, who will offer them redress? The proposal does not contemplate this and gives no thought to victims. Let us suppose that a child’s IRO is withdrawn and as a result of this the child ‘stagnates’ in an unsuitable placement. That child will, perhaps, have to suffer the consequences of these omissions for the rest of her life. Will anyone give her so much as an apology?

Conflicts of Interest.

The clause completely ignores the inherent conflicts of interest faced by local authorities asking for exemptions under the proposed clauses. In a period of austerity and budget cuts more than ever, local authorities must try to live within massively reduced budgets and ensure the on-going favour and support of the Secretary of State. Anything which helps spread the budget further is going to be greeted like manna from heaven in County Hall. There is a powerful political motivation here to seek exemptions from an administration already favourably inclined, which may well relegate the welfare of the individual child from its proper place, at the heart of the matter.

It is telling that almost all those who have no conflict of interest and are viewing matters solely from the perspective of the child, are opposed to these provisions.

We still have little in the way of specific examples of what it is said local authorities want to be exempted from and why. If there were a genuine, child welfare based, case for these powers, why is the Government not explaining how, if such a provision were suspended, these things could be achieved? Instead, we are left to grapple with vague aspirations and vaguer drafting.

Conclusions

What then of these provisions? Have they been ‘significantly amended’ and even if they have, have the flaws in clause 29 been overcome? I am far from convinced that there has been any significant change.

Careful reading and rational analysis of the new clause reveals it to be more akin to the ‘cut and shut’, dodgy motor car on the backstreet car lot. It has been given a polish, a wheel trim replaced and some tyre-wall black liberally applied. For all that, it is still dangerous. Would you want to see a child of yours riding in it?

My belief is the same as your fact; campaigning in the post truth world.

On 25th January 2017 I was very pleased to attend an event at the Bristol Festival of Ideas to hear from Daniel Levitin, neuroscientist and author of ‘A Field Guide to Lies’

He introduced a discussion about how we distinguish misinformation, pseudo-facts, distortions and outright lies from reliable information and how can we recognise misleading announcements, statistics, graphs and written reports.

His central argument as described by the Festival organisers:

in order to be successful at work, play and in making the most of our lives, we need to think critically about the words and numbers we encounter, checking their plausibility and reasoning – not passively accepting, repeating and making decisions based on the information we receive.

This is of enormous interest to me. Ironically, I was not familiar with Dan Levitin’s work until he was recommended to me by a parent who was campaigning against the ‘evil and secret’ family courts and who accused me of being insufficiently alive to what was the obvious ‘truth’ of the corruption in the system.

There was some useful advice about questions we should ask before uncritically accepting what is told to us, even when the person doing the telling purports to be an ‘expert’. We must ask

  • Is the expert offering the information the ‘right’ expert? Beware the pseudo expert! Professor Sir Roy Meadows remains saddest and starkest example of an expert who went outside his narrow field of expertise and gave information to a criminal trial which lead to a significant miscarriage of justice for Sally Clark.
  • Does the statistic being quoted support the argument being made? For example, US Today reported that as deaths from air travel in 2014 were significantly higher than deaths in 1960, this ‘proved’ air travel was much more dangerous now. This of course, ignored the total numbers of people now travelling by air in 2014 when compared with 1960. Air travel remains significantly safer than any other form of transport.

The key message from Dan Levitin was that we must ALL take personal responsibility for educating ourselves to think critically and challenge people that we know are pushing misinformation. We cannot discuss issues sensibly or at all unless we are able to agree on what the ‘facts’ are. There are no ‘alternative facts’ only ‘facts’. But peoples’ beliefs about what is or is not a fact can shift over time.

In light of my often weary and unproductive crusade over the last two years to improve the quality of debate and information available about the child protection system, I asked Dan Levitin if he had any practical tips. He reminded me of the power of confirmation bias; people will believe what they want to believe. You cannot reason someone out of a position that they did not reach by reason and getting angry with one another merely widens the gulf of distrust and further impedes communication.

A timely reminder. I left the discussion with renewed excitement about the task ahead, with my clear moral imperative to call out those people I know to be talking nonsense – but to attempt to do so in as diplomatic and careful as way as possible.

On leaving the venue, I got a phone notification from Facebook. I challenged it. Will it make any difference? Possibly not. But remaining silent is not an option, now more than ever.

What happens if I want to change my legal aid solicitor in care proceedings?

Thanks to TakenUK and DVHurts for their contribution to what sounds like a very necessary discussion. I am particularly concerned to hear that parents are not routinely given a copy of the court bundle. Little wonder distrust and suspicion grows.

This is a guest post by TakenUK. 

As where most interesting discussions arise these days, one recent twitter topic was that of issues arising from changing legal aid solicitors. A simple process you may think, but if you have a legal aid certificate, the myriad of problems associated with this is enough to drive any to the proverbial bottle.

Problems start to arise the moment a client elects to change representation, either due to the relationship between client and solicitor breaking down or when the client feels that a different solicitor is better suited to their cases requirements. I focus here specifically on the first request to change, not subsequent requests by the same client. In the past, changing law firms was troublesome but not as it is now, as the LAA insists that the client must lodge an official complaint against the solicitor and the current solicitor must attempt to remedy any issues, before the LAA will even consider consenting to the legal aid certificate being transferred to the newly appointed firm.

This is not about whether one or either of the parties is at fault here, but whilst there is some logic to the reasoning behind this required process, it does create a litany of problems for the client and the newly appointed law firm.

I just don’t trust my solicitor anymore – the need to make formal complaint

If the relationship is one of a breakdown in trust, the client is expected to lodge a formal complaint to the law firm, who then has to investigate this complaint and attempt resolution. The reality is that once trust has broken down, there is little hope in progressing forward amicably. So we now have a problem. The solicitor, to prevent from opening themselves up to further allegations or complaints, can not realistically continue to act for the client; but until the legal aid certificate is officially transferred, the client in essence is without representation.

Now complaint handling can take days, weeks, months to resolve to the point where the LAA is satisfied to transfer the certificate. If however the LAA feel there are not sufficient grounds to cease representation, the process can take far longer. Reasons for delays are numerous, from insufficient staff to investigate, solicitor is obstructive or that the firm intentionally delays the process for various reasons. The client in the meantime, is unable to have the new solicitor officially go on record unless the new solicitor is prepared to act pro-bono or as a Mackenzie friend whilst the transfer is taking place. If proceedings are ongoing and there has been allotted timescales for reports or hearings, unless there are delays to proceedings, the client is forced to act as an LIP or indeed, file statements etc which many are ill equipped to do.

The implication of delay and the 26 week timetable for care proceedings

Once the law firm has officially signed release of the case and the LAA is satisfied in transferring the legal aid certificate, the new legal team require time to adequately understand the case and prepare their case going forward, that is of course if they already have the case bundles. In many circumstances, the new solicitor has to file reports under the tightest of time frames once the certificate is transferred, with little understanding of the clients case due to existing case management time frames which do not allow for delays within proceedings.
Art 6 is very much at play at this point.

When a complaint is lodged against a solicitor, many firms are reticent to release the bundles until the complaints have been dealt with. Many clients are not even aware they are entitled to their own court bundles and some firms are asking outrageous fees from the clients to make copies of the bundles. In today’s technological age, most firms already have digital copies of the bundles and are able to supply them on a USB drive or other such means. Where clients are either not techno savy or do not have access to computers etc, hard copies of the bundles are requested, which is further delayed when the law firm does not have someone available to copy/print/file them. Some law firms are asking clients for fees to cover the cost of the relevant employees time and cost of materials. I have been asked on numerous occasions to write on behalf of the client, requesting bundles which should have been supplied two or three months prior, and often it has only been supplied once the Legal Ombudsman has been requested to intervene.

Things are even more dire, as recently witnessed by a trainee solicitor I work with. When clients are forced to act as interim LIP’s without support, clients are attending court (unprepared) and are deliberately being informed on arrival that their presence was no longer required, who then subsequently return home on the understanding that the case was being decided on paper. The result is that the client then finds themselves with judgement made against them due to non attendance with the added bonus of costs orders made against them. This concern was noticed relating to various cases within the daily listing and not specific to child matters. This is currently under investigation and I look forward to the outcome.

Now, by the time this entire process is complete and the new law firm can officially go on record, quite a sufficient amount of time has lapsed. This is not only not in the child’s time frame or best interest, but it goes against the very clients position within proceedings, not to mention the added stress to what can only be a very stressful time for them, and especially for clients with learning difficulties. LA’s have also been known to use these procedural delays to discredit the client’s position as being intentionally obstructive.

Whilst most of us are either in the legal field or have some inner knowledge of the workings of this system, it must be remembered that most clients do not and have no idea where to begin when things go wrong. There is currently no means to explain to the layman how to go about processes, what’s expected and what to do if things go wrong.

I hope that helps explain what it is like on ground level and is something that does need sorting. The amount of time consumed and paper generated to an already overwhelmed legal system, not to mention overworked lawyers, can surely be simplified.

Experience of another

Here another parents writes of what happened when she was left as a litigant in person for five months in care proceedings. 

I read the 1989 Children Act and got hold of a second hand law book that dealt specifically with that Act , from which I found out the Local Authority had acted unlawfully. I wrote out what I had found and handed it to the solicitor that had taken over the case, because she dealt with public law children’s proceedings, at the next hearing. She seemed bemused and asked who had written what I had handed to her. She said she would have to find out. She came back to me saying I was right but it would have made no difference. By this time I had done some more reading and believed that the case should have gone to judicial review and I also completely lost faith in the solicitor.

I contacted another firm of solicitors who were happy to take me on , but told me I would have to make a complaint about the original solicitors first. So I did, and was told by them that I had to meet the Senior Partner to resolve the complaint. So I turned up for the meeting, it was February, but the partner was dressed much the way senior politicians do on a factory visit, shirt sleeves rolled up and tie off;man of the people . I am obviously not legally trained, nor a high educated professional but I put my complaint across as best as I could and he dealt with me until I mentioned judicial review … He did not answer my question.

It appeared from his perspective, the complaint had been dealt with satisfactorily, from mine it was outstanding. They basically refused to let me transfer, neither the solicitor nor partner would answer my emails or phone calls, in the end I resorted to using my maiden name to get through.What happened next was even more shocking, the LAA would not transfer the legal aid as they said there was no reason to change solicitors, effectively leaving me without representation. It turned out, eventually that they had told the LAA that I was complaining about the private law proceedings and of course a lack of judicial review would not be relevant, as it is a procedure only used against public authorities.

All this took time and I was eventually a litigant in person for a little short of five months, a time of being petrified ( I am definitely more on the introvert side, so not an aspiring/failed actor) trying to present my own case against a courtroom full of seasoned professionals including of course the top notch Barrister representing the Local Authority. It was only when on the phone to the LAA yet again, that between us, I and the very pleasant lady on the other end of the phone twigged what had happened and it was put right.

So the solicitor got away scot free, even when I reported them to the Legal Ombudsman, who wouldn’t get involved as the dispute did not resolve money, if my memory serves me correctly and I had months of the Local Authority taking full advantage of my lack of legal representation to exploit my naivety.