Going Off the Rails in Interesting Times

Why do so many care cases go wrong?

What are the recent cases demanding?

  • Proper evidence
  • Proper thought about the evidence
  • Collective responsibility

For consideration of the importance of good evidence and how we secure it see the post  Achieving Best Evidence In Children Act cases

 

And why is it going to cause significant problems?

HHJ Wildblood’s recent newsletter – June 2015: Pressure on the court

There will be no capacity to ‘oversit’ this year – last year 160 days were ‘oversat’ at judge level. Thus ‘we must use every day of court time to its fullest advantage’.
If we run out of sitting days the solution will be simple: we cannot list court cases and that has dramatic consequences for litigants and lawyers alike (there will not be work for them to do). We must therefore tighten up considerably and stop the drift that is occurring.

Identified problems

  • Cases drifting – 49 cases now off 26 week track
  • Too many psychologists and ISW being appointed
  • Cases are not being made ready for court by LA in pre-proceedings stage
  • Too many examples of excessive and unstructured use of section 20 accommodation
  • Failure to obtain police disclosure in accordance with the protocol
  • IRHS being listed very close to FH and not being used properly. They should be listed at week 20 and used to resolve issues
  • Solicitors are not filing noticing of acting, causing problems in court office
  • Issues re kinship care should be subject of express and full discussion at the CMH and there should be case specific directions about it

 

Examples from case law and what we can learn

H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 – 22 January 2015

Facts: LA issued care proceedings concerning a 4 year old in March 2014. In October 2014 an SGO was made with regard to a member of the mother’s church who was not a relative, even though the child had been cared for by the father since March. The father was successful in challenging this. There had been failure to comply with rules and practice directions, particularly with regard to the procedural requirements for an SGO.
At paragraph 7 the Court of Appeal commented ominously:
‘In simple terms the case was not in a fit state to be heard. It is a matter of some significance that no-one realised that fact at the time’
There were two realistic placement options – supported care by the father or care by a relative stranger under and SGO. The fatal flaws in this case stemmed from as assumption created by poor case management that the SGO was a realistic option but the father was not.
Classic errors included:

  • Lack of judicial/counsel continuity
  • Failure to identify issues and realistic options
  • Failure to consider what witnesses were available for eg an expert report was carried out re father in 2011/12 – the father said his circumstances had now changed but no one gave any thought to seeking an addendum report or calling the expert to give live evidence.

The consequence was that the Judge did not undertake the necessary comparative welfare analysis and thus also failed to carry out a proper evaluation of whether the interference with Article 8 rights proposed by the making of an SGO could be justified.

 

A (A child) [2015] EWFC 11 17 February 2015

A textbook example of how not to embark upon or pursue a care case. Facts: A was born on 11th January while his mother was serving a prison sentence. An initial viability assessment of his father was negative so A went into foster care. The LA then took 8 months to issue care proceedings and were found to be too quick to believe the worst of the father and made comments on the ‘immorality’ of his conduct. It was difficult for the President to discern what had happened with the assessment process and difficult to link what was set out in the threshold with the need to prove significant harm.

The Guardian came in for particular criticism at paragraph 39 onwards due to the disconnect between her oral and her written evidence:

On 6 October 2014 CG completed her initial case analysis. It is striking for what it did not say. In her oral evidence to me, CG described herself as being “extremely concerned” by the assessments. She was, she said, and this was her own, unprompted, word, “appalled”, not merely because of the local authority’s delay in issuing the proceedings but also because of the poor quality of the assessments, both the assessment of the father and the assessment of the paternal grandmother and step- grandfather. Nothing of this is to be found, however, in her initial case analysis. …
The letter from Mr Leigh had, as we have seen, referred to the guardian being “most concerned at the social work exhibited in this case” but it focused on the issue of delay. In her oral evidence to me, CG said that she had brought her concerns about the quality of the assessments to the attention of the local authority’s representatives when the matter was back at court on 6 October 2014. No doubt she did, but what is far from clear is the extent to which, if at all, her concerns were articulated, either to the other parties or to Judge Taylor. I am driven to the unhappy conclusion that whatever may have been said was wholly inadequate to bring home, either to this very experienced family judge or to the parties, the guardian’s real views about the inadequacy of the assessments.

The President identified 3 fundamental principles. Failing to abide by these principles will have serious implications for the successful pursuit of an application in court.

  • Facts must be drawn from evidence, not suspicion or speculation
    • LA must provide proper evidence, direct whenever possible
    • LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
  • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
  • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed our recent conference ‘Is the Child Protection System Fit for Purpose’ and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

Re J [2015] EWCA Civ 222 19th February 2015.

Facts: two young parents who behaved in an irresponsible manner. There were issues of drug use and domestic violence. The mother had been sexually abused as a child in care. The Court of Appeal were clear this was NOT a finely balanced appeal as it was simply ‘impossible’ to detect in the judgment the Judge’s process of analysis.
Aikens JL identified the fundamental principles at para 56 – the Court of Appeal agreed with the President’s judgment in Re A, but stressed that none of these principles are new.

  • In an adoption case, it is for the local authority to prove, on a balance of probabilities, the facts on which it relies and if adoption is to be ordered, to demonstrate that “nothing else will do”, when having regard to the overriding requirements of the child’s welfare.
  • If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent “does not admit, recognise or acknowledge” that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern “has the significance attributed to it by the local authority”.
  • Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.
  • The formulation of “Threshold” issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations (“he appears to have lied” etc.)
    It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, “justify the conclusion that the child has suffered or is at the risk of suffering significant harm” of the type asserted by the local authority.”The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]”.
  • It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs”simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that “nothing else will do” when having regard to the overriding requirements of the child’s welfare. The court must guard against “social engineering”.
  • When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.
  • In considering a local authority’s application for a care order for adoption the judge must have regard to the “welfare checklist” in section1(3) of the Children Act 1989 and that in section 1(4) of the Adoption and Children Act 2002. The judge must also treat, as a paramount consideration, the child’s welfare “throughout his life” in accordance with section 1(2) of the 2002 Act. In dispensing with the parents’ consent, the judge must apply section 52(1)(b) as explained in Re P (Placement Orders, parental consent) [2008] EWCA Civ 535, [2008] 2 FLR 625.

 

South Glos Council v L and R 30th June 2015

Facts – two children both under 3 years old had been in section 20 accommodation since September 2014. In January 2015 the LA applied for a care order given the concerns about the parents who were both very young. Issues around neglect and chaotic lifestyles. On 30th January the Magistrates listed for a final hearing in July, so within 26 week period. HHJ Wildblood commented at para 4 of the judgment.

Plainly this was a case that should have been resolved within the 26 week period prescribed by statute. It is not a complex case. The issues were clearly defined. The Local Authority had been involved with the parents for years before the case started and so knew them well; the father and mother were involved with children’s services as children; there was a heightened involvement between the Local Authority and the mother following the birth of the first child. Thus, the authority had plenty of time to make up its mind about what orders it would seek once proceedings were issued.

But by the IRH at the end of June the case was clearly off the rails; the LA had no final evidence so the parents did not know the case against them and the guardian couldn’t prepare her analysis. So what went wrong?

A psychological assessment was ordered on 12th March which was not necessary. HHJ Wildblood is not sitting on the fence with his comments in para 7:

In this area far too many psychological reports are being ordered when they do not meet the test laid down in section 13(6) of The Children and Families Act 2014 that such reports should only be ordered when they are ‘necessary to assist the court to resolve the proceedings justly’. Unnecessary reports waste public money, cause delay and add nothing to the overall quality of the evidence in a case. The report, which I have read, contains little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared;

What this case needed was proper parenting assessment of both parents. But these assessments were not done in advance of the IRH at the end of June – because the agency SW responsible had left the LA and not done this work. So by the time of the IRH the LA did not have their final evidence so neither parents nor Guardian could respond. HHJ Wildblood called for an explanation at the highest level of Director and he found the full and frank response helpful. The Director wrote (See para 13):

This situation has largely come about because of significant staffing issues within South Gloucestershire Council’s social care service. The North locality team has been affected particularly badly by high levels of staff turnover at both practitioner and management levels, which in turn has led to the use of relatively high levels of agency staff. It is evident that this situation has impacted on this case with a lack of consistency and direction, as well as a loss of knowledge and oversight each time a social worker or manager has left the Department. The Local authority’s legal team has equally been through a period of significant turnover and change recently, which has again led to inconsistency in relation to legal oversight and direction’.

HHJ Wildblood was sympathetic but obviously such sympathy is not infinite. He set out a list of considerations for future cases which may be going off the rails.

  • If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
  • Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
  • Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
  • If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

 

Collective Responsibility?

It will be interesting to see how this concept develops – particularly when many of the problems in these cases (particularly pressure on LA staffing levels) are outside the sphere of influence of any of the participants to the care proceedings.

20 thoughts on “Going Off the Rails in Interesting Times

  1. Sam

    Sarah
    I don’t know if this is the correct place to ask about disclosure . I do know that there is supposed to be full and frank disclosure ( Yes Angelo I know there always isn’t) but is this they only practice direction that applies https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_21a . So if something is asked for, say about a particular day, a list has to be supplied of documents relating to that. Or am I confused yet again? Can the person who wants the disclosure then say I will have that and that to put in the court bundle. I think, yep I know that’s dangerous, that the bundle has to be agreed by the parties or in case of disagreement the judge decides?

    Reply
    1. Sarah Phillimore Post author

      Problem is that the bundle is now limited to 350 pages and you need permission from the Judge to exceed that. So we are supposed to think carefully about what documents are needed – for e.g. there is no need for 100s of pages of contact notes if everyone agrees contact is good or ok. the LA must disclose certain types of docs and provide an index of other documents that have informed their thinking but are more historical.

      Reply
    1. Sarah Phillimore

      As I understand it, a professionals duty of confidentiality towards a client is always overridden if they receive information that shows a child is at risk of serious harm.

      But putting the child’s welfare first certainly does not mean that you are allowed to lie, alter documents or hide documents.

      Reply
  2. angelo granda

    I don’t know if this is relevant but i believe the Court usually puts the responsibility to obtain and distribute documents,medical records etc. onto the Guardian’s solicitor’s ,doesn’t it?

    It is they,i believe,who get records from family doctors,hospitals, schoools and so on.
    As far as CS records are concerned, i don’t know if the Guardian has free,unfettered access or if she simply has to accept what she is given.

    Reply
    1. Sarah Phillimore Post author

      Sorry, I don’t understand your point. Yes, often it is the Guardian’s solicitor who organises the disclosure of medical notes, but any solicitor can take the lead. What are you suggesting? That the Guardian won’t get a full set of GP or hospital notes? That the doctors will send the notes via the LA to be tampered with??

      Do you really think that I wouldn’t notice if that happened?

      Re records made and kept by the LA – the Guardian has a right to inspect all files. But given recent cuts to funding etc, I accept that most of the time the Guardian will not do this. Hence, very important for parents to challenge LA at the time it is given.

      It just underlines why parents have to engage with the process. If there is something in the notes that isn’t right or you think is missing – TELL YOUR LAWYER.

      Reply
      1. angelo granda

        I was not suggesting that Sarah,i was merely pointing out that we cannot push the blame onto the CS or the respondent solicitors.I think the onus is on the Guardian to provide the court with the documents .
        I agree parents should tell their lawyer if they think something is not right or missing.

        Reply
  3. angelo granda

    If the Court ordered the Guardian to provide historic documents, can i assume that the Court intends them to be included in the bundle,included in the evidence shown to all parties prior to hearings and be included alongside all the other historic evidence shown to the independent experts for use in specialist assessments?
    Or can the Guardian simply supply an index of the evidence and withhold the documents?

    Reply
    1. Sarah Phillimore Post author

      Any document that is going to be relied upon at the final hearing must be in the bundle. If the contents of that document are challenged, the author of the document must be available for cross examination.

      Parents and their lawyers will have the bundle index many weeks before the final hearing. If you are not happy with the state of the bundle you must raise it ASAP and certainly no later than the IRH.

      No one can ‘withhold’ any document upon which they rely, unless it involves issues of national security or relates to an on going police investigation that might otherwise be prejudiced. But in the latter example, the police are usually happy to release to lawyers only.

      Reply
      1. angelo granda

        Correction,Sarah.Parents and their lawyers SHOULD have the bundle index many weeks before.
        When correct procedures,safeguards and court directions are not scrupulously observed,this does not happen.
        The system is abused,documents,statements etc are routinely lodged late with court and sometimes evidence is not presented until the final hearing ( or, in some cases,during the final hearing.
        I presume the Judge allows this because he thinks it is ‘ in a child’s best interests’ and that it would not affect his final decision.

        Reply
        1. Sarah Phillimore Post author

          If your lawyer has not received the bundle and the index well in advance of the final hearing, your lawyer MUST apply for an adjournment because they will be unable to represent you competently. Any lawyer who attempts to conduct a hearing when they have not prepared adequately is guilty of professional misconduct.

          If documents are provided late you must have time to consider them. Seek a short adjournment at least.

          If you don’t have a lawyer, take some responsibility as active participants in these proceedings. If you don’t have the bundle or the index, make urgent application to the court.

          Reply
          1. angelo granda

            Thanks, for your advice,Sarah.
            Do you accept the reality that respondents are usually vulnerable lay people,unable to speak out effectively for fear of being branded uncooperative and that they rely on the ‘professionals’ to intervene on their behalf and ensure fair judgments? They employ the lawyers to do so because they cannot do it themselves. I suppose it can be said respondents expect their lawyers to perform certain functions .Are we entitled to expect it?If the lawyers will not act without a respondent telling them what they should do,that is a fundamental flaw?
            All your comments welcome,

          2. Sarah Phillimore Post author

            If respondents are so vulnerable they cannot a)read documents in the bundle and b)tell their lawyers why they don’t agree with what they read and c)instruct their lawyers to do something about it, then these people would probably lack capacity to ligtigate and this needs to be raised in court urgently so the Official Solicitor or other litigation friend can intervene on their behalf.

            I would expect any barely competent lawyer to raise issues of capacity at the earliest stage.

  4. angelo granda

    I suggest the parent is a lay-person who lacks the capacity to act ‘professionally’ and put legal arguments but does not lack the capacity to instruct a lawyer who he expects to act as litigation friend.
    It would be illogical to appoint an official solicitor for every respondent who does not fully understand the legal procedures.

    Reply
    1. Sarah Phillimore Post author

      Then people need to make more use of advocates. Or they need to stop listening to consipracy theories and actually engage with their own lawyers – who want to help.

      I am sorry, but I just don’t understand why you seem to say that a parent may be unable to identify a lie about them in court papers either before or during the final hearing. That suggests something really fundamentally wrong with that parents’ own capacity.

      Reply
      1. angelo granda

        I did not say that,i said they are not legal professionals and can’t identify procedural breeches which allow the untruths into the court.,Isn’t that the collective duty of the lawyers involved?
        Parents would say it is and i think the High Court has said so too.In fact,in one case i know of,when turning down leave to appeal a high court judge said that the applicant had a case against her own lawyers for not bringing breaches to the attention of the lower court.
        Do you understand a little bit better now?

        Reply
        1. Sarah Phillimore Post author

          No. I don’t understand at all.

          You say lies are put forward in court and parents don’t challenge them.

          How are these lies put forward, if not by the written evidence in the bundle? Which should be read, analysed and digested well in advance of the hearing?

          if you are saying the evidence is NOT in the bundle, then why isn’t it being challenged in the hearing – when presumably a social worker attempts to bring the evidence in for the very first time in her/his oral evidence. Why isn’t the parent writing their lawyer a note saying ‘but this isn’t true!’ why isn’t the lawyer than applying to adjourn or cross examining about the lie.

          Sorry, no I don’t understand. It may be that my brain is fogged by cold, but what I keep reading is that you think parents are nothing but passive spectators to the case that is unfolding before them, and they do and say nothing to help their lawyers recognise any inconsistencies or untruths. And I just don’t understand why on earth parents would do that – unless of course they had just decided to disengage from the process after following the tragically awful ‘advice’ of a variety of lunatic campaigners, Ian Josephs being one of the worst of all.

          You mention a lawyer criticised on appeal for not bringing relevant information before the Judge, which is quite right. That lawyer should be criticised and I can understand why it would be hard for a parent to directly challenge their own lawyer.

          What I just don’t understand is why you seem to claim that it is some kind of universal experience for parents that lawyers can’t or won’t recognise lies in court material.

          Reply
  5. Sam

    Firstly high dose vitamin C works brilliantly to shorten colds , hope you have some at hand. I think one of the problems is that those going through care proceedings may have never previously met a solicitor let alone a barrister so will not so much instruct them as believe everything they say at the time. They may also be in a state of shock and more than likely be unable to think straight. It’s only afterwards, when the dust has settled that the parent can see what was missed . The other problem I see is that as a parent cannot speak in the current system , unlike FADAC they are so dependent on the lawyer getting all points across . With the best will in the world , the lawyer’s are going to miss something in this game of Chinese whispers.

    Reply
    1. Sarah Phillimore Post author

      I think those are good points which all professionals should try to bear more in mind… BUT I am still very uneasy with a narrative that allows parents to think they are passive in this process.

      Reply

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