Human Rights Act 1998

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.

However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

The most likely Articles of the ECHR which are in play in regard to child protection cases are:

  • Article 8 – the right to respect for family and private life;
  • Article 6 – the right to a fair hearing.

For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality. For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post. 

We will need to watch this space, particularly with recent Government proposals to ‘scrap’ the HRA and replace it with a ‘British Bill of Rights’..

 

The requirements of the Human Rights Act 1998

What is an unlawful act and what is a public authority?

‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.

A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act.  There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].

It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017).

 

What remedy can you get?

Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.

This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court  about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts. 

Article 41 of the ECHR

This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK [2002].

General principles about awards of damages pursuant to Article 41

See this Practice Direction  from 2007.

  • A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
  • Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
  • The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

The concept of ‘just satisfaction’.

The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.

  • damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;
  • the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;
  • That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach,  a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.

In the case of H (A Child – Breach of Convention Rights: Damages) [2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82:

 It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something.   There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.

The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.

This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.

The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:

Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.

The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:

  • The length of the proceedings
  • The length of the breach
  • The severity of the breach
  • Distress caused
  •  Insufficient involvement of the parent or child in the decision making process
  • Other procedural failures.

WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams  & Anor [2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.

 

What did the Law Commission say?

The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:

The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…

The implication of the costs of proceedings

Guidance and warning from Anufrijeva 

Para 59 of Anufrijeva was cited with approval by the Court of Appeal in 2012,:

The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.

The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be ‘rough’. The court also sounded this note of caution:

The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.

The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:

  • The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.
  • The claimant will need to explain why it isn’t more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.
  • other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.

These warnings have been repeated in later cases, most notably by Cobb J in SW & TW [2017], cited above.

Other issues regarding HRA applications

Limitation periods: You must make your claim within a year if its a ‘free standing’ application.

But the court does have discretion to extend that time. Section 7(5) provides that:

‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Injunctions under the Human Rights Act

It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.

 

If care proceedings are on going

The courts are clear that if human rights issues are raised during care proceedings, they should be determined within those proceedings, not by separate application to another court. See In the Matter of L [2003], approved at paragraph 58 in H (A Child – Breach of Convention Rights: Damages) [2014].

The court held further at paragraph 64:

I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).

BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.

 

The impact of the legal aid charge – can it ever be worth making a claim?

It is now beyond doubt that the Legal Aid Agency will seek to recover its costs from the amount of damages awarded. This is set out in the Statutory Charge Manual  [2014].  Thus, if an application is made under the HRA in existing proceedings – as the court advises should happen – an applicant is likely to have already incurred significant legal costs which are likely to wipe out any award of damages.

The purpose of the Statutory Charge, as set out in the Manual is as follows.

  • put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v. Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98).
  • ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
  • deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.

There are exemptions from the charge – see page 31 onwards of the manual – but the HRA does not appear. The Manual itself runs to 108 pages which gives you an idea as to its complexity.

The issue of costs and the statutory charge was further considered in CZ (Human Rights Claim: Costs) [2017] EWFC 11.

The court dealt with this from para 46 onwards. The parents and the child were each awarded £3,750 as ‘just satisfaction’ after the child was removed at birth for about three weeks and the LA later conceded they had no evidence to justify this. However, the court was clear that the damages were likely to be eaten up by the statutory charge and was critical of the failure by the parties to adopt a proportionate approach to this issue.

For further commentary on this issue, see this post by The Transparency Project. 

Can anything be done to avoid the statutory charge?

Free Standing applications

It seems sensible to consider making a free standing application under the HRA which is not then linked to the costs incurred in any other proceedings, as this may help keep any costs at a lower level. However, applicants will need to be very careful of criticisms levelled by the courts at those who do not raise human rights issues in their existing proceedings.

This was the route taken by Keehan J in the Northamptonshire case in 2017. Its success will depend on the particular facts of each case.

See also the case of P v a Local Authority [2016] EWHC 2779 for a decision where the statutory charge was held NOT to apply to an award of damages. There is commentary on this case by suesspiciousminds who points out that this case probably won’t be a ‘road map’ for future cases as there were two major differences between this case and other HRA cases: namely that the HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all and the LAA had been asked to fund a damages claim and had refused.

Section 17 of the Children Act 1989

Further discussion with colleagues suggests that the LA could pay money under section 17 of the Children Act 1989 which deals with the provision of services to children in need and their families; section 17(7) allows the LA to make payments in cash. There is also the general wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person.

However, payments made under either Act are unlikely to be an attractive option to LAs as they would come out of social work budgets whereas a court order to pay damages would be met by insurance. Nor is it enforceable, if the LA say they will pay but then go back on their offer.

Costs orders

Give consideration to asking the court to make a costs order against the other side. It is now clear that these applications are governed by the CPR and therefore the starting point for costs will be that the loser pays. However you will need to consider your own litigation conduct and attempt to make realistic and genuine attempts to settle.

Making a complaint pursuant to section 26 of the Children Act 1989

A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.

The only problem with this approach is that for those acting on behalf of the child there’s little room for negotiation over the amount of money offered, because once proceedings have finished the children’s guardian doesn’t have any standing to pursue a HR application 

Damages awarded in other cases

  • 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.
  • Northamptonshire CC v AS [2015] – damages £16K.
  • 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.
  • In re A (A Child) in August 2015,  the mother was awarded £3,000 for unlawful removal of her child.
  • 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.
  • 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.
  • 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.
  • 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. 
  • BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
  • GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.
  • 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)
  • 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.

Further reading

 

132 thoughts on “Human Rights Act 1998

  1. angelo granda

    A PARENTS VIEW.

    Are Social Workers sub-human? Does the System treat Children worse than Animals?

    It says above that the most relevant articles of the Human Rights Act relating to child-protection are 6 and 8. Parents may believe the main causes for complaint would be under Article 3. I certainly do!

    Local Authority actions are inhumane and in contravention of Article 3 of the ECHR convention relating to torture and inhuman or degrading treatment of both children and families as a whole. The Local Authority is effectively causing inestimable,permanent,emotional and physical harm the full effects of which it is impossible to predict to the children and adults by mental torture,anguish and degradation.

    In my opinion, the Children’s Act as it stands is incompatible with the Human Rights Act. It actually instructs the Local Authority and Children’s Legal Panel to treat children and parents separately before a court order is made thus, for civil regulatory purposes, the children’s rights to membership of its own family and a family life are degraded legally and practically before an investigation has even begun. Not only are the rights of the parents removed on the grounds that their children’s welfare are paramount above them but the child’s right to protection by its natural family. A processs of interference in family life ( reform) is commenced before full and proper legal process.

    A CHILD HAS A GENETIC CONNECTION TO NATURAL PARENTS – It is part of a human genetic chain both physical and spiritual which should never be broken asunder by Public Authorities (except in the most serious criminal cases of abuse. Any child-protection professional who does not recognise a child’s fundamental human right to life with its family and breaks that bond physically by separating the family forcibly is sadly lacking in humanity.

    That a child’s genetic connection to parents should be severed in law,that he or she should be exposed to intrusion upon their personal privacy by medical examination and assessment without the knowledge and attendance of parents and have a guardian and a set of lawyers appointed for him or her ( without the approval of parents) on a basis of possible or likely significant risk as meant by The Children’s Act ( a concept laid open to the capricious whim of a social worker ) without a court order OR WITH ONE is inhumane.There is no justification for it under Article 8(2). Except for those cases where a parent or parents are found guilty in a criminal court of serious physical or mental abuse, cruelty or serious criminal behaviour which would merit their own detention anyway to protect the children and the rest of the Public, there is no justification for such action . If necessary such parents should be imprisoned or placed under an order forbidding contact with vulnerable children. Even then, the children should have frequent, supervised contact. Separation from natural family in the absence of criminal neglect or abuse, on the strength of untried allegations of such or on the concept of undefined significant risk suggested by the physiological health of a parent or child (e.g. obesity, blindness or autism),the mental health of a parent or child ( e.g. learning difficulties, stress disorders or Munchheussens syndrome),age discrimination, ethnic background or association or on a finding that the children concerned are considered to be likely to lead a more full, more healthy or settled life in care is inhuman. Likewise, separation on the grounds of risk of emotional harm brought about by parents lifestyles ,cultural backgrounds ,financial or moral poverty or the child witnessing disputes or violence between parents is inhumane.

    Other corrective action can always be arranged. Workhouses, hostels, ghettoes and reservations have been used historically and all are less barbarous and more civilized and humane to children than separation from parents. A child’s life can never be better in care than it can with its natural family even if richer in material terms.

    That a Local Authority can construe the Children’s Act (because of its ambiguities) in a way that appears to permit them by Law to remove a child capriciously from its family on grounds which are disproportionate to such action thus unnecessary and that it should impose an irrevocable mechanical process of reform on a family which severs a child’s legal birthright to the protection and succour of its natural parents practically (even when temporary or of short duration) appears to be possible and commonplace. I believe children and families as a whole are subjected to inhuman and degrading treatment, the practicalities of which inflict extreme mental torture onto all of them under the auspices of an inhumane Law.

    (It is also inhuman and degrading for confidential family medical records to be dissected and commented upon by MEDICALLY UNQUALIFIED system participants).

    Should it be thought that the danger to a child is so great due to criminality ( suspected or otherwise) of parents ,then it is the task of Police and the CPS to bring charges before a criminal court. Should the charges be so serious as to be proportionate to separation beause there is a serious future risk to children or other members of the Public, suspects are regularly remanded in prison. Alternatively bail conditions can be granted with a condition that suspects do not contact their children.
    If charges are not brought before a court or where it has issued unconditional bail ,Social Workers and Civil Courts would appear to exceed their remit when they treat parents as criminals before such proceedings are completed.The power to decide whether risk to children is unacceptable should not be usurped by the Local Authority. Neither is it necessary for a Civil Court judge to define risk to children.
    It does not require special expertise to define risk as ever present to all children in all families no matter who the parents are; all risk to children is significant to parents and it cannot be said absolutely that any risk to children is insignificant under the meaning of The Children’s Act. This is why the removal of children on the basis of a perceived risk felt to be significant ( under the Act) is an illogical concept.
    Risk is ever-present thus HAS to be acceptable and sometimes more serious risk is inevitable is inevitable . It is a fact of life that children suffer harm on occasion and that sometimes parents are ultimately responsible for and accountable for it.
    IT DOES NOT WARRANT THE PERMANENT LIQUIDATION OF NATURAL FAMILIES!

    Should the cause of harm be the criminal behaviour of one parent or both,then it is the duty of the criminal legal system to decide on appropriate action promptly within time scales relevant to the safety of the children.
    Should criminal charges not be a factor,it is the task of every responsible adult to protect children but the main onus is on the parents not social workers. If it is felt by a court that parents are unable to protect the children, it is the statutory duty of social workers to keep the families together with support not to inflict significant harm to the children by separation. It is the mission of the Family Proceedings Court to determine,if necessary, if any protective order might be issued to provide support which will safeguard children.

    Article 3 of the Human Rights Act is overlooked by lawyers,in my humble opinion. I will welcome further comment from any source.

    Reply
  2. Sam

    I think you are right regarding Article 3. Some of the tricks that are played when separating families are down right degrading. It is very important to look forward but it needs to be coupled with listening to what parents are saying. In all fairness I think it is , at least by Sarah and her colleagues hence the debate about recording. I as a parent can personally say that the social workers and a few other professionals have lied. Not little fibs, though they are bad enough but lies to degrade me and cause me harm. Yes the welfare of the child is paramount but I believe in civil law (correct me if I am wrong) there is a duty of care not to deliberately or recklessly harm a person.
    Families deserve fair process what is at stake is far too important and irreversible.

    Reply
  3. C

    Correct me if I’m wrong ,Sarah, but didn’t the law lords – with the notable exception of Lord Bingham of Cornhill – decree that Social Workers do not have a duty of care to the parents, or the family – only to the children?

    Reply
  4. Sarah Phillimore

    There is no duty of care to parents who are the subject of a child protection investigation, on the public policy grounds that if such duty exists, this would inhibit proper investigation. Lord Bingham rejected that view but he was minority.
    But a duty of care to parents has been held to exist in other circumstances.

    Reply
    1. C

      Thanks for clarifying that, Sarah. … And of course there is a putative duty fro Social Workers to maintain the ethical code of Social Work that is supposed to be policed by the hcpc – but frequently isn’t, because fitness to practice going forward is very different from actually preventing historical wrong doing.

      So the Social Worker apologises and says they now have insight into their mistakes – and steps over the parents laid crying on the carpet to take the next case. Perhaps if they have done something heinous they get a six or twelve month suspension.

      The hcpc anyway only barely uphold the Social Work code buried deep in their website. Anyone interested can download it from here:
      http://www.hcpc-uk.org/publications/standards/index.asp?id=38

      Here below are some bits of the code that are regularly ignored:

      1 You must act in the best interests of service users.

      2 You must respect the confidentiality of service users.

      3 You must keep high standards of personal conduct.

      4 You must provide (to us and any other relevant regulators) any
      important information about your conduct and competence.

      5 You must keep your professional knowledge and skills up to date.

      6 You must act within the limits of your knowledge, skills and
      experience and, if necessary, refer the matter to another
      practitioner.

      7 You must communicate properly and effectively with service users
      and other practitioners.

      8 You must effectively supervise tasks that you have asked other
      people to carry out.

      9 You must get informed consent to provide care or services (so far
      as possible).

      10 You must keep accurate records.

      11 You must deal fairly and safely with the risks of infection.

      12 You must limit your work or stop practising if your performance or
      judgement is affected by your health.

      13 You must behave with honesty and integrity and make sure that
      your behaviour does not damage the public’s confidence in you or
      your profession.

      14 You must make sure that any advertising you do is accurate.

      Whoops – that’s all of it. Anybody ever seen any of this breached?

      Reply
  5. Sam

    Can a social worker take an action which a reasonable person would see would cause deliberate harm to a parent then if there is a child protection investigation ongoing?
    I am thinking along the lines of making a parent intentionally homeless or preventing a parent from access to services that may improve their well being?

    Reply
  6. angelo granda

    Is it HUMANE to tear a family unit apart is the pertinent question on this particular thread..

    If an RSPCA official came across a stray bitch and her pup in the street after an alert and it appeared the pup was suffering harm, would the family unit be torn apart or would both dogs be taken to the kennels?

    I do believe the stated object of the Children’s Act is to keep families together except in the most dire circumstances and I think the Law states so because it is in the best interests of a child’s welfare.

    Because of ambiguities and grey areas in the Act , actual serious bodily and severe emotional harm is caused to CHILDREN when the Authorities ( either officials or the Courts) break apart family units.

    Of course, when one harms a parent , one also harms the child. Why do we think the Act says families are to be kept together? It isn’t for the parent’s welfare, it’s for the child’s.

    If the answer to that question is YES then we might reasonably say that the cp system, in some cases, treats CHILDREN worse than animals.

    Reply
    1. Sarah Phillimore Post author

      Yes sometimes it definitely is. It would have been better for Daniel Pelka, for Peter Connolley, etc to tragic etc.

      The problem is knowing when a family is beyond redemption. That’s the issue.

      Reply
  7. angelo granda

    Very,very few families are beyond redemption, fortunately and it should be no great problem to find out which ones present a great danger to children; those which do must be supervised and the children monitored.

    How to find out when removal is necessary?No problem!

    Follow the guidelines and investigate the FACTS. When doing so, forget ones fears that one MIGHT have another case like Peter Connelly for a start.Then forget about hearsay,suspicion and allegations only. One does not want to cloud assessments and judgments.Each case is different and it is a FACT that cases of serious , criminal abuse and cruelty to children by parents are extremely rare. Thus CS lawyers should stick to the real world. Examine the facts ; look in all the right places. Medical records,Police records,School child-protection records, Social Work archives etc and if there are facts in them which show that a child/ children are in real danger of serious abuse then simply report the facts to the Police.

    Given that serious harm and abuse of children is so rare,one cannot begin to argue for children to be removed in a court of Law without concrete facts that such harm and abuse has occurred in the past.. Why not? It is so rare, it is unlikely that it will happen in the future. The CPS will not charge the parent/s without facts and neither should a family court make decisions without them.

    Reply
  8. angelo granda

    I forgot to mention other absolute essentials.

    The Parents must be interviewed and given the opportunity to give their account of the facts.They should make written,signed and dated statements. Perhaps,also, it might be wise to record the interviews.

    Witnesses should make signed and dated statements too.Neighbours,extended family etc. should be included in investigations.

    The key point of contention ( the issue) should be examined IN DEPTH. What is it? Did it actually happen? Was it good or bad? Praiseworthy or blameworthy? Fact or plausible conjecture?

    All contrary arguments and evidence from all concerned to be gathered and studied in detail. Social workers should not be allowed to ‘lose’ and conceal evidence.

    In other words, an in-depth core assessment ( with the involvement of parents) should be undertaken before anything else.

    Reply
    1. Karen

      I SO agree with you Angelo Granda, This IS the way it SHOULD be but sadly NOT and my Family has been turned upside down! and we are SO HEARTBROKEN, The way the system IS UNJUSTIFIED!!!! It’s CRIMINALl!!! For those people who just needed some help!!! Shame on the “professional’s!!! ALL OF THEM and The LIES!!! Sarah Phillimore if you “think” what your saying is “true” then I would be MORE THAN HAPPY for you to contact me and you can listen to what has happened to my Family and then you can say what you please. In fact I would beg people like you to LISTEN and understand from some one who REALLY has had to learn just what it’s like to be in this situation. And I’m sorry to be harsh,but I surposse you have “better” thing’s to be doing rather than putting something SO WRONG,RIGHT!!! Shame on you ALL If you don’t DO SOMETHING FOR THE CHILDREN !!! Just think how much MONEY could be saved,If thing’s were done properly!!! What a better place for us all!!!

      Reply
      1. Sarah Phillimore Post author

        I don’t ‘think’ what I am saying is true. I base what I say on evidence. I recognise there are serious problems with the child protection system. I have spent the last two years listening to people. I have spent many 100s of hours doing work for free for parents. So please don’t presume you know what I spent my time doing or how I prioritise my time.

        If you don’t find this site helpful, please feel free to go somewhere else.

        Reply
  9. Sarah Phillimore

    You say -a FACT that cases of serious , criminal abuse and cruelty to children by parents are extremely rare. –

    I am afraid I don’t agree, and if you want to understand why, read the Serious Case Reviews for the last couple of years, they are on the NSPCC websites. Not rare at all, sadly.

    Reply
  10. angelogranda

    I have not read the reviews but I imagine that 100% of the cases in them are serious.Statistically,however ,I am concerned that only a small minority of the thousands of cases annually are cases of serious abuse and cruelty.

    There is a legal principle laid down (Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563) that where there is an allegation of particularly serious harm, more evidence would be required to show a Family Proceedings Court that it had probably occurred than would be the case of an allegation of less serious harm.
    Evidence must be shown on the ‘balance of probabilities’ based on facts to the court rather than suspicions. The proposition is that ‘more serious harm’ is more likely to entail care-plans which demand removal. Although less serious judgments and protective orders may be issued, removal should not be sanctioned solely or to a considerable extent on the basis of trust in the good faith and professional judgment, opinion and/or suspicions of social workers and / or Guardians and other experts. It cannot be assumed that entries in child-protection files are likely to be or are probably true statements of fact especially when guidelines have not been followed and when no enquiries involving parents undertaken.
    The above principle proclaims that ‘severe neglect’ or other serious harm should be proven to have probably occurred based on an investigation of FACTS before it can be argued that there is a real risk on the balance of probabilities that children will be likely to suffer significant harm in the future. Severe neglect is less likely to occur in reality thus unless any likelihood it occurred is supported by facts that it probably occurred, it cannot be argued there is likely to be real risk of significant harm.
    The corollary is that prevarication should not be encouraged in a court of law by sustaining suspicions through the concealment and avoidance of verified facts which render them unreasonable.
    A LINE HAS TO BE DRAWN,in my opinion, between serious cases which can be defined as those cases in which the Local Authority are wanting to remove children from home and less serious cases . While the latter may be decided on suspicions,opinions,concerns etc. removal should not be ordered except when the facts show a child HAS in actual fact suffered serious harm in the past.Not that he or she may have done.

    I think most parents will agree with that proposal, but ,of course,local authority lawyers may think differently. Perhaps Sarah could illuminate us from a respondent lawyers viewpoint.

    Reply
  11. Sam

    Here we go again: http://www.bbc.co.uk/news/uk-england-humber-33237550 and http://www.grimsbytelegraph.co.uk/Social-worker-rapped-taking-young-baby-away-mum/story-26744773-detail/story.html

    Is it the norm to routinely disregard Article 8 and Article 6 by pressurising vulnerable parents with threats . Has Article 3 been infringed also, surely this is inhumane treatment?
    What I am surprised about is that the LGO actually recognised the infringement and dealt with something that had been in court. I would love a link to a judgement if anyone can find it please.

    Reply
  12. Sam

    I want to highlight again possibly my favourite judicial sentence” As I said during the course of the hearing, no baby, no child, can be removed simply as the result of a decision taken by officials in some room.” quoted from G, R (On the application of) v Nottingham City Council [2008] EWHC 152 (Admin) (01 February 2008) . I think I may have to get a t shirt printed!

    Reply
  13. Sam

    Here we go again: http://www.bbc.co.uk/news/uk-england-humber-33237550 and http://www.grimsbytelegraph.co.uk/Social-worker-rapped-taking-young-baby-away-mum/story-26744773-detail/story.html
    Is it the norm to routinely disregard Article 8 and Article 6 by pressurising vulnerable parents with threats . Has Article 3 been infringed also, surely this is inhumane treatment?
    What I am surprised about is that the LGO actually recognised the infringement and dealt with something that had been in court. I would love a link to a judgement if anyone can find it please.
    This did not go through at first and should be linked to my last comment as it seems a bit random by itself

    Reply
  14. angelo granda

    We have to remember that core-assessments are expected to be made at the outset of a case ( before lawyers become involved).

    Is there a pattern of malpractice? Does anyone actually sit down in any room at all and make any effort at all to separate fact from fiction?

    Sam, they saw you for an hour or two.Were you involved in the core assessment? It is usually at an early stage when cases enter into cloud-cuckoo land and by the time parent’s solicitors become involved, correct process has already been abused.Carol, did the key social worker sit down in any room with any of you to examine the facts surrounding your grandchild’s medical condition?
    -We have the statute which says cases must be conducted properly.
    -We have high court judges saying that investigations must be open-minded and impartial and that all evidence contra-indicative of the case for removal must be reported.
    -We have Social Workers with 30 years experience stating that there is no such thing as an ‘ impartial’ investigation.
    -We have parents and families claiming procedures are flouted.
    – We have lawyers saying that the evidence for removal is usually overwhelming.

    Are Social Workers scrupuously honest? Crucially, did they state in the core-assessment that you HAD been fully involved in the process when you HAD NOT?

    These questions must be asked.

    Reply
  15. Sarah Phillimore

    “We have parents and families claiming procedures are flouted. – We have lawyers saying that the evidence for removal is usually overwhelming”

    The problem is that these two statements are not mutually exclusive. Yes, cases can be badly handled and yet the case for removal is very often very clear. I would estimate in 80-90% of my cases the final outcome is pretty obvious from day one.

    the problem is the 10% of cases where it is not. Where sloppy gathering of evidence really matters. And 10% is a large number of families and children.

    so we have to do better. But we won’t get anywhere continuing to assert that the majority of social workers are liars and the majority of families involved with social workers are ‘blameless’ because I don’t believe at all that either assertion is true.

    Reply
  16. angelo granda

    I have to agree with Sarah on that; I, too would never assert that the majority of Social Workers are liars. In fact I will never use that word about even a small minority of them. I am concerned,however, that some of them give unlawful evidence under oath.

    Likewise I assert that some families are blameless but I don’t think any reasonable person would assert they all are!

    The problem is not the ‘sloppy gathering of evidence’ as I see it , the problem is that lawyers and Courts are deceived by ‘ some’ Social Workers . Indeed , I believe very few children are removed because of the alleged neglect or maltreatment which may or may not have actually occurred. They are removed very often because Social Workers spread the untruth that the parents will not acknowledge concerns and accept support and are unlikely to change within time-scales relevant to the children concerned. Similarly, they say ingenuinely that a parent needs therapy and that it cannot be completed within relevant time-scales.

    Of course, unless all cases are publicised and unless all judgments are published, no-one can assert with confidence whether this happens in the majority or the minority of cases.

    It is difficult to say how Social Workers think they can make an in-depth core assessment without involving parents and asking their version of the facts.

    Reply
    1. Sarah Phillimore

      “I believe very few children are removed because of the alleged neglect or maltreatment which may or may not have actually occurred. They are removed very often because Social Workers spread the untruth that the parents will not acknowledge concerns and accept support and are unlikely to change within time-scales relevant to the children concerned”

      I am afraid this belief has no basis in fact. The majority of children are removed on grounds of neglect. This, by the very nature of the issue, has usually been on going for several years and is clearly evidenced from a variety of sources.

      I have often seen photographs taken by the police of the state of some homes. Even with these photographs a good proportion of parents are simply in denial and claim ‘we were decorating’ for eg.

      We are not going to get anywhere if you cannot accept some quite basic truths about what is going on.

      Reply
      1. Sarah Phillimore Post author

        Carol, I just don’t know. I am not privy to the facts of your case. You say you have a court hearing in July. Perhaps it would be better to save your energies for that hearing, rather than continue to post here – particularly as you keep mentioning names which may lead me open to action for contempt of court.

        Reply
  17. angelo granda

    You are absolutely correct yet again Sarah, we aren’t going to get anywhere if we do not accept fundamental truths.Wait a minute, though, one of those is that when cases are conducted incorrectly, appraisals are UNREALISTIC and MISINFORMED and when investigations are not open-minded and impartial , there is at the very least a probability that the clear evidence is biased against the respondent and thus invalid en masse.
    The High Court appears to accept that procedures must be followed meticulously by professionals and that children should not be removed from home if it isn’t because the credibility of the evidence is compromised.So should we.
    It’s no use citing evidence,photographic or otherwise if it is not impartial. The camera can ‘lie’,incidentally.So can Police PWIN reports. I

    Reply
    1. Sarah Phillimore Post author

      If you are prepared to deny that scene of crime police officers take accurate photographs of the urine stained mattresses in the cots with no other bedding, of the animal crap on the floor which are otherwise piled high with detritus then indeed our debate can go no where.

      I am afraid it is a harsh truth that the police have better things to do than elaborately stage or doctor photographs of some of the absolute squalor and misery in which many people live. It is not necessarily their ‘fault’ they live this way, but the children can’t be left to suffer.

      by seeking justice for those wrongly accused – a noble aim – you risk denying the reality of the suffering for many children. Which is very, very far from a noble aim.

      Reply
  18. angelo granda

    I hope you do not mind me being open and honest with you but I think you allow your natural aversion to some of the cases you have seen to cloud your interpretation of what other contributors actually write.
    Because of that, you tend to stifle fair discussion.
    At no time did I suggest that Police scenes of crime officers take inaccurate photographs or that they stage anything!

    I hope you don’t read evidence in the same way you read these posts.I merely made the point that the camera can ‘lie’.

    All ‘snapshot’ evidence such as photographs and PWIN reports ,if presented to a Family Court ,can be misleading. There is a well-known legal principle ( explained to me by a criminal lawyer) that criminal cases are to be kept separate.The Police take photographs expressly to support possible criminal charges and PWIN notes are made in the context of tendacious critique intended to assist criminal investigations.They are not statements of fact and are often discounted after full investigation.It can be said that criminal investigations are ‘witch-hunts’ but Family Proceedings are not supposed to be.

    Do all Family proceedings lawyers see their primary ‘noble duty’ as the being to protect children from harm or not? I remind readers that the main aim is to keep families together not to ‘ socially exclude’ families who live in squalor and neglect their children as a result.The object is to reform not destroy!

    Reply
    1. Sarah Phillimore Post author

      I do not pay the same amount of forensic attention to posts on here as I do to a case in court. You will appreciate that I have only 24 hours in a day.

      Your suggestion that I ‘stifle’ discussion is not one I am prepared to accept. I allow all manner of what I consider to be nonsensical comments to appear on this site, in an attempt to encourage discussion. But, just as I allow people to express views with which I profoundly disagree, you must allow me to reject these views as I see fit.

      Reply
  19. angelo granda

    Okay,Sarah,I withdraw without reservation any suggestion that you tend to stifle discussion and I do trust that you pay more attention to what is written in the course of your legal work.

    On this thread, I am trying to put a parents view on the Human Rights Act. I am not denying that some children need protection from neglect or anything else. I have given my thoughts on Article 3. One person, Sam, agrees with me.I was hoping you might give your view. You haven’t agreed or disagreed,you have merely jumped on those comments you object to and questioned my aims.

    Before I go on to Article 6 with my views as a parent,please will you give readers your legal viewpoint on Article 3 and the merit of any view that the Childrens Act is used to contravene the convention rights of CHILDREN.

    Also, do all family division lawyers see their first duty as being one to protect children involved in cases?

    Please let’s be more constructive.

    Reply
  20. Sarah Phillimore

    I apologise for my testiness.

    I am not at my best when I rise at 5.30am to spend 2 hours on a train for a pro bono case, all the time with the phrase ‘legal aid loser’ ringing in my ears.

    But you are right, we must be constructive. The points you raise about the Convention and Article 3 are serious ones and worthy of proper consideration.

    I propose therefore to publish a much more considered blog post over the weekend which I hope you and others will read and respond to. I think this is sufficiently important to try to highlight the issues, rather than letting it get lost in comments.

    Reply
  21. Pingback: Article 3 ECHR and Care Proceedings | Child Protection Resource

  22. angelo granda

    Do all family division lawyers see their first duty as being one to protect children involved in cases? I have asked this question of Sarah once or twice as I think it has a bearing on the fairness of court proceedings.
    Can we all agree on the following?
    In the interests of justice and for the protection of children, removal should very rarely ordered and that great care should be taken to ensure that correct procedures are followed scrupulously by professionals.
    For the protection of children involved,the procedures are to be applied meticulously in every case. There can be no discrimination against families and even if one or both parents have half-killed a child, the rules apply nevertheless.Or if it appears that the parents are paragons of virtue,frameworks and guidelines are to be followed.

    To protect children such as Baby P and to protect children against wrongful removal,the same rule applies.

    Reply
  23. angelo granda

    I do understand there is only 24hours in a day and I know there are many others seeking answers on other threads too.So I am not impatient at all I just want to add one or two more ( constructive ) questions to those above with the intention of getting this one moving again.

    First of all to Sam- Did the key social worker state in the core assessment that you were fully involved in its making? I understand that core assessments are submitted to Court under oath.If you dig out your copy and answer that question it would be helpful.If he did say you were that would be fraudulent evidence given under oath, I think because the Judge would have been misled into the belief that due procedure was followed when it was not.That would have perverted the course of justice.

    Sarah, I realise that professional advise often conflicts. Your view is that one can appeal if the Judge ‘has got it wrong’ and I understand that and agree with you.The Court Office,however, issues instructions and advice along with forms of application that one cannot appeal if one thinks the Judge has got it wrong!

    They advise also that one cannot appeal either if one considers the verdict illogical or unreasonable.Judges have the discretion to be so.What one has to do is show the verdict was irrational. I would be grateful for your comments.Also please will you give us your definition of ‘Wednesbury Unreasonableness’ ?

    Reply
    1. Sarah Phillimore Post author

      Your view is that one can appeal if the Judge ‘has got it wrong’ and I understand that and agree with you.The Court Office,however, issues instructions and advice along with forms of application that one cannot appeal if one thinks the Judge has got it wrong!

      Can you post/send me a copy of that guidance? That is extremely concerning. The clear and only test for an appeal was if the Judge got it wrong – by failing to take into account relevant law or facts, or taking into account irrelevant law or facts. A verdict that is illogical or unreasonable is by its very definition ‘wrong’.

      of course there is a wide spectrum on which decisions may fall and just because one judge would not agree with another does not make either judge ‘wrong’. But if their decision is tainted by unreasonableness or irrationality then it is difficult to see how it is not ‘wrong’.

      My understanding of Wednedsbury unreasonableness is that it is making a decision or failing to make a decision that is so irrational that no one else in that position would have acted or failed to act in the same way.

      Reply
  24. angelo granda

    Sarah,I shall send you a copy a.s.a.p.
    From your experience,can you cite a case example of an irrational decision? Given that the high court expressly forbids it, will it be rational if a judge ordered removal knowing full well that legal process had not been followed scrupuously ,or would he be allowed the discretion to decide that fair process is not absolutely necessary?

    Reply
  25. Sarah Phillimore Post author

    I am not aware of any decision in care proceedings that has been criticised as ‘irrational’. But many have been successfully appealed on the basis of poor or non existent reasoning in the judgement.

    It can happen that a judge will say – the procedures were not followed in this case, which is a bad thing. However, failure to follow procedures has not impacted on the outcome, which would have been the same regardless of whether procedures were followed or not.

    It will depend on how serious is the breach of procedure. Some are merely technical but others go to the heart of a case – for example, not serving a father with relevant paperwork.

    Of course, its always best that procedures are followed, otherwise you damage trust in the system. But breach of procedure is not going to automatically lead to an appeal or a breach of Article 6 rights.

    Reply
    1. angelo granda

      Can we agree that were the CS to refuse to engage with the parents,fail to question them at all and not include them in assessments nor involve them in the creation of care-plans etc. It is serious?
      Also would it be serious if the department flouted more than one procedure?? If they failed right from the outset in so many respects ,would that possibly be regarded as something approaching deliberate malpractice ;possibly even malice?
      Sarah and Sam,I have asked you specific questions in my last but one post above.Have you missed it?

      Reply
      1. Sarah Phillimore Post author

        Of course that’s serious if the parents are not engaged with at all! That would be terrible – unless it was a case of parents simply refusing to engage. I have never had a case in 15 years where the LA ‘refused’ to engage, but I have had plenty of cases where the parents did.

        And of course its serious if more than one procedure is flouted – makes it more likely that there is going to be something substantially wrong with the case. And it would support an argument of deliberate malice.

        Reply
    2. Jerry Lonsdale

      The Dodds saga up here in Liverpool where on one case parties enter court for CMC and HHJ Dodds made final care orders, I cannot think of the quote off hand that was used by media.

      Appeal courts felt HHJ Dodds was totally irrational, as we know, HHJ Dodds went on to face the OJC

      Reply
    1. Sarah Phillimore Post author

      Ouch. I hope the silver lining to that rather massive cloud is that it will reassure Angelo that Judges are not simply puppets of corrupt LA officials and they will administer a judicial kicking when one is required.

      Reply
      1. angelo granda

        QUOTE:It can happen that a judge will say – the procedures were not followed in this case, which is a bad thing. However, failure to follow procedures has not impacted on the outcome, which would have been the same regardless of whether procedures were followed or not:UNQUOTE
        I don’t think all judges are mere puppets or that all experts are lapdogs. I have never believed that all LA’s are corrupt either.I have seen both sides of the coin.

        The quote above indicates that Judges,though,will bend over backwards to give the LA what they want and I have seen their acrobatics.In a circus tent, they would get standing ovations!

        Reply
      2. angelo granda

        It seems pretty clear to me.
        Local Authorities corrupt cases WITHOUT ANY DOUBT WHATSOEVER when they do not follow fair procedure and enable realistic,informed appraisals.
        Sarah, you do not seem to understand that the evidence presented to you ,the Court and the expert assessors. MUST BE wrong when SW ‘s do not carry out open-minded ,impartial enquiries. Of course the evidence against parents is damning when the department isn’t impartial!
        All they do is a scandal-mongering witch hunt not a genuine enquiry.They trawl through records and look for every negative ignoring all positives.They also exaggerate every negative and misquote medics,schoolteachers and other professionals.
        That is why, when the papers get to you, you are misled and you find the case against parents clear-cut.
        They have contrived to corrupt the evidence.Can we all agree that everyone relies on the INTEGRITY of investigations. Evidence must be substantiated and that is why we the Children’s Act promises children and families SUBSTANTIVE DUE PROCESS.
        The CS often fail to engage deliberately and set out to mislead the lawyers ,reporting falsely that the parents won’t cooperate .
        Unfortunately,lawyers appear to accept the CS too readily above that of their own clients.
        What can we do about it?

        Reply
        1. Sarah Phillimore Post author

          I don’t accept I don’t understand evidence. On the contrary, it is what I have dedicated 15 years of my life to studying and thinking about.

          But you make good points. I think this needs a separate post.

          Of course procedures should be followed. Of course there is a risk that if they are not, care proceedings will be unfair and unjust. But not every failure of procedure will have that consequence.

          Let me give you an example from my recent practice. I was asked to consider a judgment on the basis that there was a real danger that the LA had either fabricated or distorted various parts of the evidence.

          Lets say that the evidence to establish significant harm must weigh a ton. Its represented by an elephant. Some pieces of evidence are automatically elephants – a parent who is on the Sex Offenders Register who wants unsupervised contact with a small child for eg.

          some pieces of evidence are less weighty. Think of them as mice. You will need an awful lot of mice in the scales to weigh the same as an elephant.

          In this recent case the parents can point to many examples of mice which they say have been introduced into the case unfairly. But unfortunately for them there are also two huge elephants waiting to be weighed. Even if the court had thrown out each and every mouse as improperly introduced, the decision he had to make was obvious and unappealable.

          Of course, if you find that the LA had improperly opened up a sack of mice in a case, you would want to be sure that it really was an elephant and not a balloon the LA had painted grey and stuck a trunk on. But when you are really, really sure its an elephant, the mice don’t really matter.

          I hope that makes sense.

          Reply
  26. Sam

    I think the short answer is very little. The system needs to change, but it won’t whilst it still benefits those in charge of it. At a minimum for the process to be fair we need audio recording of all meetings. All the ranting and raging in the world is not going to change a thing unless we can say look here is a better way, it’s going to mean improving outcomes for children and probably more importantly it’s going to save you money. Child protection issues do not generate votes, that is the bottom line.
    Going back to that case a couple of posts above, if you have proof of abuse of process, Angelo have you considered taking civil action? I know it would be difficult and you may not be eligible for legal aid but the there are some resources now to help . I think in cases like ours disclosure is the key .
    Here is something that may be helpful http://www.advicenow.org.uk/going-court-or-tribunal-without-help-lawyer.
    On a different matter this website is now on the 1st page of Google for recusal. I still can’t find anything else about the actual procedure for appeals without an order. I am beginning to think there isn’t one.

    Reply
    1. angelo granda

      Sam, Thank you for your comments.I have not alluded to any case I may or may not have been involved in on a personal level(I.e.as a respondent ). I have been careful not to as I am trying to be as neutral as I can in the interests of constructive discussion.
      You have referred to your case and so I asked specifically was it stated in assessments and care plans that you were involved in them.
      You have already said that you were not.

      If the SW stated you were,we should all be concerned about it! The problem is that Sw’s compile the documents they submit to Court (and experts) using Computer templates and they adapt them . These models will say near the beginning that Mum and/or Dad has been fully involved in investigations and the SW will leave it in and sign it casually .
      Does that pervert the course of justice? I think it does!
      Well?

      Sarah, I appreciate and understand the ‘elephant and mice’ explanation but so many wrong elephants enter into calculationsi right at the beginning because SW’s don’t investigate hearsay allegations properly.Also they contrive to concoct evidence of sex abuse themselves (look at Cleveland,Strathclyde and other cases in the norhwest. )
      I agree with much of what you say and when I make my points it is my desire to go into more depth that is all.Please bear with me?

      Do all family court lawyers see their primary duty as one to protect children involved? If the answer is yes, then all of them have a clear duty to inform the Court when guidelines and fair process has been sidestepped. Not only the respondent lawyer but the lawyer for the Guardian and those for the Local Authority? Can we agree on that?

      Reply
      1. Sarah Phillimore Post author

        Sarah, I appreciate and understand the ‘elephant and mice’ explanation but so many wrong elephants enter into calculationsi right at the beginning because SW’s don’t investigate hearsay allegations properly.Also they contrive to concoct evidence of sex abuse themselves (look at Cleveland,Strathclyde and other cases in the norhwest. )
        Yes but it is much more difficult to fake an elephant. They are much bigger and they weigh a hell of a lot more. Therefore if you have an evidential elephant in a case it is quite likely to be an elephant.

        Hearsay evidence is very unlikely to ever qualify as an elephant, and the court have made this clear. It simply does not carry enough weight. But hearsay evidence could be a mouse that finally tips the scales in a finely balanced case, I accept that.

        This does not mean of course that it is impossible to fake an elephant or steal an elephant from a local zoo – it just makes it much less likely to happen.

        Examples of elephants are criminal convictions and findings of fact in criminal courts for eg. For this NOT to be an elephant but in fact a confused dog in a fake trunk you would need to show that the criminal court was also involved in a conspiracy or had made a massive cock up. Of course, it happens. Look at poor Sally Clarke for eg. But it is much more difficult to involve a multiplicity of state agents in your conspiracy/incompetence. So if I see relevant criminal convictions, I am likely to have faith in that as evidence.

        Similarly allegations from children which are detailed, consistent and volunteered – this is likely to be an elephant in terms of evidence.

        Do all family court lawyers see their primary duty as one to protect children involved? If the answer is yes, then all of them have a clear duty to inform the Court when guidelines and fair process has been sidestepped. Not only the respondent lawyer but the lawyer for the Guardian and those for the Local Authority? Can we agree on that?
        Yes of course we can agree on that. But I wouldn’t say I have ‘one’ primary duty, I have a number of very important duties which sometimes compete – I have an obligation to my client, I have an obligation to the court and we all have an obligation to protect children.

        HHJ Wildblood QC has reminded us very recently in the South Glos case about our collective responsibility to keep cases on track and I will be writing more about that in an article for Jordans Family Law which is coming out in October.

        Reply
        1. angelo granda

          I think it is the duty of the solicitors on the Children’s Legal Panel to make all the checks for barristers.As I have opined before,counsel come to cases after panel have already agreed evidence,examined court-precedent and taken a collective decision on what action needs to be taken. Social Workers and Guardians are present at those confabs btw. Respondents are not ! Having made an agreement based largely on precedent rather than individual cases, even respondent solicitors are loth to report errors of procedure to barristers or Judges, are they?

          Hope this assists your discussions and deliberations,Sarah. The whole point of Article 6 is that families are entitled to a fair hearing.I have a lot to say about it but most of the complaints are about solicitors not your own profession.

          Reply
          1. Sarah Phillimore Post author

            When I get a case, usually I have a good few hours to sit down with the paperwork. If its a final hearing it is rare and not good practice to get a number of files dumped on you at short notice. But it can happen.

            But usually I have time to sift through it all. If I am of the view that the evidence in the bundle is not sufficient, or is poorly set out, or is simply wrong, then I challenge it.

            I don’t just simply nod my head. i am not a puppet. And nor is the Judge. This is why the state will pay me to act for parents – or at least they are still prepared to do this for the moment, maybe not next year…?

            Because the parents need someone to look at the case against them with a critical eye and actively challenge sloppy or non existent evidence. Its actually quite hard to concoct an entire case against someone. You can bet you will slip up somewhere as you gather the paperwork. And that’s what I will find.

    2. Sarah Phillimore Post author

      The Transparency Project are currently collating the FOI responses from every LA re recording meetings, in response to this issue being raised at CPConf2015. This is with a view to suggesting a code of practice that could be useful for both parents and LA in fully understanding the legal position and the consequences of recording, how those recordings can be best used in court etc.

      So there is more than just ranting going on. It is very useful to clarify what exactly are the problems otherwise we can’t usefully discuss any solutions.

      Reply
  27. Sam

    Sarah I didn’t think you were ranting. I think the posts are getting muddled up. I am glad about the recording FOI . It should be interesting to see if all reply. I would not be spending yet another summer holiday without my family if there had been recording. I do disagree slightly with your point that agencies do not cook up stuff between them. It may of course just be my personal experience. They certainly toe the Children’s Services line even while there is evidence to the contrary.
    The police in my case have consistently failed, both myself,and the children.

    Reply
    1. Sarah Phillimore Post author

      I did not say that agencies never ‘cook stuff up between them’ – I simply make the point that the more people you involve the more difficult it is, the more likely you will slip up and it will get noticed.

      I think it is much less likely that two agencies have conspired together – but of course not impossible.

      Reply
  28. angelo granda

    A PARENTS VIEW ON THE FAIRNESS
    (ARTICLE 6) OF FAMILY PROCEEDINGS..

    We should all have major reservations about the management of the Family Court system.In my opinion, hearings resemble McCarthy style tribunals with the standard of evidence very low; gossip and slander as well as libel is rife.

    The Court protocol and process gives the Local Authorities considerable advantages over parents. Ordinary courts show much more respect to the rights of respondents.

    The family court is less bound by rigid forms.It does not rely on juries for verdict.It acts not on FACTS but merely on the petition of the Local Authority and ‘ information received’.

    It puts respondent parents on oath to answer a Local Authorities complaints and to reply to detailed interrogatories despite them not having had any detailed,formal charges made against them and without any equitable explanation of the petitions presented by the wide range of professionals lined up against them.

    At the same time, hearings are in private thus no-one can witness proceedings: no-one (professional or layperson) may come forward to offer evidence which might contradict that of the Complainant.It is a child-care tribunal of sorts ( a la French revolution).

    It has the help of Judges and its decisions are backed by the state and the Law. Yet its methods lack the safeguards which common-law procedures provide for the civil liberties of families involved.

    Draconian orders, (with attendant torture and degradation) exceed any legitimate punishment or course of treatment which might be handed out by any other even a criminal court.It acts outside the regular course of justice.

    The Local Authorities make frequent use of the Family Courts and often make no attempt to make use of mediation, discussion with parents and normal child-protection plans ( CIN,CAR etc).It uses the court system to impose its own arbitrary and harmful social work policies.It appears to parents THAT THE PROFESSIONAL PARTICIPANTS IN GENERAL ARE FULLY OBEDIENT TO THE LOCAL AUTHORITY WILL.

    Having said that,victims acknowledge that ,in court right at the end of proceedings,counsel does put brief submissions to the Judge on their behalf.However,the submissions are ineffective because the court protocol directs that a judge MUST follow the advice of professionals such as the Guardian.No checks are made on methods used by those professionals!

    The Local Authorities are using the family court procedures with increasing vigour not with the LEGITIMATE AIM ( described by the Children’s Act) to protect children by the provision of support to families; It, in fact, appears to target any family which is not ‘squeaky clean’ for often negligible,trivial reasons and brings cases without consideration of article 8.

    Because of the advantages which the Family court gives to complainant authorities, the CS operating in partnership with Police, are bypassing remedies available in ordinary courts of law. They take allegedly criminal cases to the Family Court which seems to have taken its place as a ‘regular’ court alongside the ordinary courts of law.

    The Family Court is not really a court at all , in my opinion it is a system whereby the Local Authorities make ‘requests’.They ask for permission to exercise their own arbitrary judgment in what are generally non-criminal and petty cases. Parents have often not usually broken any law or even caused accidental harm to their children.Some may have neglected their children but on a scale which has no connection with serious or criminal neglect or treatment.
    It is arguable that the Family Courts should be abolished in the 21st century in Public Law cases; its set-up (protocol) is only suitable for use as an arbitration purposes in private law civil cases.

    All comments welcome as always including disagreements.

    Reply
    1. Sarah Phillimore Post author

      The family court is less bound by rigid forms.It does not rely on juries for verdict.It acts not on FACTS but merely on the petition of the Local Authority and ‘ information received’.

      The Family Court is not really a court at all , in my opinion it is a system whereby the Local Authorities make ‘requests’.

      That is just nonsense, and it makes it hard for me to engage with any sensible point you might go on to make.

      Reply
  29. angelo granda

    Behave,Sarah! When involved in a maeutic process, one does not cry ‘Nonsense’ and walk out in a huff when anoher participant says something with which one disagrees. Or I would have done so long ago
    All the readers can judge whether my comments are helpful or not but ( to reform a flawed system) some of what parents write is bound to be controversial!
    You talk of transparency projects and from a parent’s view two things are quite transparent.t is quite transparent .
    1.The statute and the High Court demand strict due process.
    2. The prevailing thought of Lawyers and Judges in the lower court is that allowances and compromises can be made when due process is not adhered to and cases are conducted wrongly.

    These two are incompatible with each other, can we agree on that small point?

    If we can,then we have to address the anomaly and change the lower court protocol.Or we should consider sending serious cases to a standard court which gives families more protection.
    Let’s consider the nitty -gritty!

    Reply
    1. Sarah Phillimore

      Sorry, I have limited time. A lot of that time I want to spend doing other things than constantly repeating the same old same old.

      If the debate can’t get off the starting blocks because you want to continue to assert things that just aren’t true, this is officially a Waste of My Time.

      Reply
      1. Sarah Phillimore Post author

        sorry, that probably sounded a lot more aggressive than I meant it to.

        You have made some good points. You have raised some useful issues for debate. But you keep coming back to the same points which I think I have already exhaustively answered now. We simply have to move on from painting some characature of the family courts as some nonsense kangaroo court. They are not. There is a lot going wrong, but it isn’t that.

        Reply
  30. angelo granda

    Your complaint about me just do not stand up.For a start , I have only just started on article 6 and you mentioned Kangaroo Courts not me.
    You must have no mistake that there are countless parents who do not agree with the myth that they get a fair hearing in Family Courts

    I have put a parent’s view not a lawyer’s view.If you continue to believe that parents do get a fair hearing then you are quite entitled to do so.If you want to ignore fundamentals like the anomoly I mentioned in my last post and don’t have the time. Leave the discussion!
    I have put forward sensible points not nonsense and you should either moderate your comments as I have done or refrain from
    it.
    Perhaps someone else could give their opinion? If you want to drive me away,you aren’t doing a bad job. I am beginning to think it’s a waste of time too!

    Reply
  31. angelo granda

    QUOTE; The system needs to change, but it won’t whilst it still benefits those in charge of it. At a minimum for the process to be fair we need audio recording of all meetings. All the ranting and raging in the world is not going to change a thing unless we can say look here is a better way, :UNQUOTE

    To other parents.When a system is fundamentally injust ,its no use tinkering.
    We have to tear the whole thing up and inst
    Itute a new one. Radical solutions are called for.
    Sam,All the recordings and new procedures in the world aren’t going to solve anything.Why not?The LA can just flout them too and the lawyers can turn round and say “Never mind,it probably wouldn’t have affected the outcome anyway”.
    Carol Bird, Please stay with us. Surely you must be used to hammering against brick walls by now.It is tiresome but necessary.
    Sarah,I have the utmost respect for you and your motives.You mean well but we differ fundamentally and I feel you have little respect for mine.
    At the moment,our dialogues are absurd.You won’t answer the question about what I see as a fundamental anomaly and I shall wait in the wings until you do so.So I leave the ball in your court!

    Reply
  32. angelo granda

    Carol Bird, I am pleased you have returned to the CPR.

    On this thread about Article 6, can you answer this question (which is a constructive one) in a few words without giving any details such as lawyers names: Was your case heard in a Family Court or a normal criminal court?
    It is by asking and answering questions like this honestly that we can make progress.

    Reply
    1. Sarah Phillimore Post author

      Carol Bird requested that all her comments be deleted from this site. She expressed herself in quite strong terms that she did not find this site valuable or useful.

      I am therefore pleased to grant her request and I am deleting any comment she makes.

      Reply
  33. angelo granda

    I am not accused of anything.
    The answer to the question is that your case ,which involved serious allegations of assault/battery of the child, was taken to the. Family Proceedings Court rather than any criminal one. Thank you for that.

    Reply
  34. angelo granda

    Sam, Do you feel able to answer my previous
    question about how your case was conducted?

    You have said that the CS have told ‘lies’ not just little fibs.

    Sarah will not yield on her belief that the court sees FACTS; the SW gives their interpretation of these facts,she wrote!

    Parents , in my opinion, will claim that the CS version of the facts is dishonest. We understand they can make mistakes yet the wheat has to be sorted from the chaff ( fact and fiction).Some SW’s are guilty of serious dishonesty and perjury.

    QUOTE: A child with a broken bone is a FACT. A mother with a black eye is a FACT. Parents who have been addicted to drugs for 20 years are a FACT : UNQUOTE

    Not necessarily. The CS often distorts its version of the facts for all sorts of motive and in all sorts of ways which means that the court makes its findings after being misled as to the true facts.

    Is my assertion ‘nonsense’? Perhaps were you to check the core assessment and care-plans, then tell us whether the SW claimed falsely to have involved you fully or not, that would help readers decide.I don’t think Sarah will shift on it; she has faith in their versions.
    If , for some reason, you cannot answer my question just say so and I won’t ask again.

    Reply
  35. Angelo Granda

    QUOTE: Do all family court lawyers see their primary duty as one to protect children involved? If the answer is yes, then all of them have a clear duty to inform the Court when guidelines and fair process has been sidestepped. Not only the respondent lawyer but the lawyer for the Guardian and those for the Local Authority? Can we agree on that? Yes of course we can agree on that. But I wouldn’t say I have ‘one’ primary duty, I have a number of very important duties which sometimes compete – I have an obligation to my client, I have an obligation to the court and we all have an obligation to protect children : UNQUOTE

    The above quote must give all readers cause for deep concerns about ‘conflicts of interest’ faced by child-protection professionals in general. One concern is that whilst counsel are highly trained and can probably be trusted not to allow these conflicts to affect the way they act towards the paramount duty they have to their ‘client’, sometimes they may allow ‘fears for a child’ to cloud their judgment.

    My main concern ,however is about solicitors ! Can respondents possibly get a fair hearing in a family court when they apparently do not have lawyers acting exclusively for them? There is a Guardian and a set of lawyers acting for the children, a Local Authority Lawyer who ostensibly is acting in the paramount interests of the child’s welfare,and a set of lawyers acting for a respondent who also have a duty not only to the children but to the court. This may mean a respondent’s rights under Article 6 are abused.Of course, in a criminal court,lawyers are expected to always act solely in the interests of their client with no ‘conflicts’ allowed.

    Therefore, the below views of a parent may be of interest to readers ,although rather lengthy.

    The requirement for parents to undergo psychological assessment and parenting assessments without a prior apposite investigation of circumstances is an abuse of article 6 rights. The assessments are ill-informed, appear to be utilized unfairly for litigation purposes, influenced covertly and affected to the detriment of the parents case by system participants. It is an abuse of their and the children’s rights that they should undergo a paediatric assessment from a court-appointed panel doctor without a prior apposite investigation of circumstances. Those assessments are also misinformed when parents aren’t fully consulted and present during the examinations.

    A conflict between the requirement for justice and outside influences on parent’s lawyers appears to exist. Children’s legal panel members in cases also act for the Local Authority in other cases. It would appear to be commonplace that loyalties are divided. There is a latent potential that if a solicitor can be relied upon to put the Local Authority’s own needs and wonts above his or her client’s, cooperate and be friendly with social workers by keeping discussion to a minimum and give preference to its cases then that would curry its favour and win the Local Authority’s reciprocal esteem when allotting lucrative work.

    I believe that parent’s solicitors appear not to wish to disturb the status quo or use any evidence or argument in the parent’s favour which might affect precedent or lead to the exposure of flawed practices. It is not in their interests to do so as this might have an effect on those tactics they use themselves when acting as paid representatives for the Local Authority. In order to be able to continue to use flawed but well-used arguments and practices themselves in future cases, it is not in their interests to expose them.

    Furthermore, strictures due to past precedent impair the fundamental tenet that each case is an individual one.

    I also contend that respondents should have the ability to respond effectively in civil proceedings but it appears that the nature of the Family Court and its attendant Children’s Legal Panel do not allow parents to do so fairly. Although both have legal representation, it would appear that professional protocol limits the extent to which they are permitted to respond to opponents.

    There are indications that, as Children’s Legal Panel members, the family’s own solicitors are not working entirely on their behalf. They appear to the applicant to show bias towards Social Workers and a level of prejudice against their clients. They do not look upon the family as a ‘unit’ but as two different entities (children and parents) before any order is granted. It appears to be a requirement of the Children’s Act that families should be put asunder in Law and that a process of reformatory action is necessary and to be commenced even before a case has been put before a Court. Generally, children’s legal panel protocol appears to impose a duty upon all its members, even those acting for respondents and the children, of tendentiousness or an intentional bias towards mere insinuations (non-factual evidence) which works against children’s paramount interests. In other words an unfair ‘no smoke without fire’ approach to suggestive hearsay evidence is followed by all including the Judge.

    At the very least the parent’s ability to support their case is subdued. Professionals appear to put their predilection towards their own perceived duty of mutual trust to panel colleagues plus a smooth relationship with social workers before respondent parents and indeed before the paramount interests of children.

    Because of the protocol the parent’s lawyers appear more interested in keeping arguments particularly any criticisms of other parties’ professional evidence to a minimum. The child-protection system appears to lend itself to authoritarianism.

    The Children’s Legal panel hold pre-hearing discussions in line with normal practice prior to all hearings. Two parties viz the key social worker and the Children’s Guardian are able to sit in on discussions, hear arguments, keep tabs on legal issues and adapt their respective evidence and approach to the case. At no time are respondents given the same privilege. The other two parties are not legally qualified professionals thus it cannot be assumed that they are impartial.

    During the hearings, Court schedules are very tight, there is no scope for variation in schedules to cater for contingencies and the Judges appear to be involved concurrently with other cases causing proceedings to commence late often. Judges often pull up counsel reminding them of her schedules.(particular respondent’s counsel).Children’s interests are paramount even above executive pressure to complete cases quickly. Every family has a right to a fair hearing which demands the full, undivided attention of lawyers. When lawyers leap over issues kangaroo-style due to court schedules that is unacceptable where children’s human rights are concerned.

    The Executive protocol which guides the Children’s Legal Panel and the Court about the general performance of their functions appears, in reality, to comprise instructions that cases are to be decided summarily.

    However when the Local Authority is to be granted the power to impose such a severe sanction as permanent removal this approach to any case should not be acceptable.It certainly would not happen in any other court.

    That Family Court hearings are held in secret is detrimental to the paramount interests of children. Public hearings are essential to a fair trial of evidence. Details of a case (e.g. children’s names) are not made public before, during or after proceedings thus it is impossible for any independent party or witness with important knowledge to come forward and volunteer evidence. As a result, during proceedings, parties to a case and experts can make uncorroborated statements and unreasonable final court decisions can be made without Public scrutiny.

    Whilst a Local Authority can call upon anyone, respondents are unable to call upon professional support (such as school or medical) as they are forbidden from contacting or talking to agencies about a case. This restriction also applies to support from friends and family.

    For all the reasons above I have concerns that the Court proceedings are not impartial or comprehensive thus in contravention of article 6(1) on two points:-
    • The existence of guarantees against outside pressures.
    • Whether the civil process (Children’s legal panel and the Family Court) presented an appearance of independence.

    All comments welcome including disagreements but particularly from any parent who can back up my concerns about Children’s Legal Panel solicitors. I don’t think these conflicts of interest should be allowed.

    Reply
  36. angelo granda

    The appearance of bias ( more comments from a parent relevant to Article 6).

    The derogation of children’s rights to the full protection of their natural parents and to membership of their family under article 3 also leads to their and the parents rights under article 6 being impaired. Because of the legal protocol which prematurely splits the family asunder, the system professionals appear to be obliged to operate a judicial bias against parents. It appears the protocol actually instructs a Judge to conduct proceedings with an assumption of a level of parental blameworthiness and that parents are legally detached from their children and thus unable to make applications except for selfish reasons. In the real world families are a unit and parents act solely in his or her children’s interests. Judges appear to suggest that only they can take decisions in the (paramount) interests of the children and those decisions and applications made by parents are in their own interests not their children’s. Any decision,the system declares, should be in the children’s interests only. The clear implication of that stance is that parent’s requests are made in their own interests! At no time during proceedings do Judge’s appear to consider that other parties are acting against the children’s interests. This presents an appearance of bias against parents which is directed by the Court protocol and which works in the favour of any party which opposes them.

    The Local Authority actively contrive to prevent parents from gathering information to support their case. When parents contact medical and school sources those agencies tell them they are forbidden from giving opinions and information to them by command of the Local Authority and legal protocol. The agencies provide reports to the Local Authority alone and understand it is the duty of the Authority under the Children’s Act to provide copies of those same opinions to parents, other professionals and to any court involved.

    It appears that both other parties are permitted by protocol to make enquiries, discuss the case with, issue clandestine instructions to and influence relevant professionals at will whilst parents are excluded and disbarred from such discussions.
    Parents legal representation and ability to respond
    Certainly parents are often told by their lawyers that they are unable to put forward the proposition that the Social Workers have given false evidence. Particularly in child-protection, each case is different. The respondent lawyers are anticipating counter arguments, prematurely prejudging issues themselves on the basis of past precedent and will not put arguments on the basis that, on past precedent, it is a waste of court time. It is often obvious to parents that the Local Authority uses arguments which, in precedent, have been used successfully to remove children from home but which does not actually apply to their family being born of cases concerning dysfunctional families encountered by the department in the past.

    It transpires that respondent lawyers are unable to argue the parent’s case fully in Court or at the professionals meetings due to the protocol and Local Authority statements are too often taken to be correct as read. Past precedent appears to be that a Court will always prefer Social Worker and a Guardian’s evidence to that of respondents who are thus deterred from fair response. Certainly the parents are not permitted to respond effectively to the Guardian’s evidence. Any tribunal with such protocol is intrinsically unfair. This is especially so because it appears to allow complainants and the Guardian to cast doubt upon respondents’ statements and on those expert reports in respondents’ favour.

    It would seem that clashes of interests are commonplace and loyalties divided. If it is normal practice for a solicitor to be under pressure from a Local Authority to meet deadlines and support it when acting contemporaneously as its paid representative, why would he or she put friendly relations with a social care department in jeopardy and strengthen a publicly funded client’s case by offering time-consuming, inconvenient arguments?

    There is a latent possibility that if solicitors ( who have a duty to instruct and fully inform counsel they commission ) can be relied upon to put the Local Authority above its client’s, give it latitude and not insist when it fails to provide evidence and witnesses requested, have an empathy with its logistic difficulties when it maltreats children, fail to respond strongly to its breaches of the Law and Court protocol, sympathize with social worker colleagues and give them an easy ride when dealing with them on the behalf of clients, fend off client’s meritorious complaints on the grounds of precedent, cooperate and be friendly with social workers by keeping discussion to a minimum and give preference to its cases , then that would indirectly curry its favour and win the Local Authority’s reciprocal esteem when allotting lucrative work.

    I HAVE THE SAME CONCERNS ABOUT THE CHILDREN’S GUARDIAN AND LEGAL TEAM. They also appear to prefer to harmonize with the Local Authority’s hoaxes,often do the children no favours and do not curry the parents favour. It cannot be said with certainty there is direct collusion, however, it is easy to visualise how sets of like-minded lawyers, operating under a protocol which directs them to be sympathetic towards the difficulties faced by social workers day-to-day, may be drawn into taking inappropriate choices when deciding on the extent of latitude to grant a Local Authority and it cannot be said that collaboration with the Local Authority’s lawyers would not have the potential to ingratiate both the respondent’s lawyers and the Guardian’s lawyers with the Local Authority.
    I understand the executive protocol grants favour to Social Workers because it is felt to be in children’s interests for protective orders to be put in place where there is even a very slight element of risk and respondents accept the protocol, appreciate the problems the department faces in its work, grant a substantial level of indulgence to the social workers themselves by not appealing interim care-orders, agree to assist the Court and cooperate with assessments to establish the extent of risk which exists and the type of family support to be offered. For all that, decisions to remove children permanently are infinitely more serious and as such there should be much tighter controls applied to Local Authorities.

    As far as impartial representation by their lawyers is concerned, I can only bring to this DISCUSSION a view of the situation which appears to exist to respondents ask professionalsto fully consider all possibilities and probabilities which might have a potential bearing or which probably has a direct bearing on the fairness of Family Court hearings in general.

    Reply
  37. Sam

    I found this link yesterday ,http://unsafespaces.com/2013/03/16/quashing-the-child-protection-investigation-self-serving-or-breaching-the-dam/ I know it is a couple of years old but I found it helpful in explaining why the family court does not appear as interested in Children’s Services procedures as it ought. As the article says it something that upsets many parents , in fact if not No. 1 in the list of grievances in must be in the top 5.
    The lack of effective remedy, as it is difficult to find a solicitor to take on a judicial review, really does give Children’s Services free rein to do as they please in some circumstances.
    I also listened to this yesterday http://www.bbc.co.uk/programmes/b0643t63 which was a programme discussing evil. Social Workers are frequently labelled as evil. As I listened to the programme , one of the contributors said we all had the capacity for evil and I agreed with him. I think it’s only internal forces, conscience if you like, or external such as laws that stop us from committing crime or harming one another. I personally have suffered from actions of social workers that were malicious, it could be called evil, they were definitely designed to harm me. My first solicitor seriously failed me legally, then spent more effort covering her back than trying to sort out the mess she had got me into.
    In the news at the moment it a growing number of police forces are being investigated as they themselves did not take seriously allegations of abuse by Edward Heath. Has Lord Sewell been arrested for his cocaine use, it appears he has step children , I don’t know what age they are but I bet if they are still children , Children’s Services haven’t been knocking at the door. The “expert” who examined me did it at an NHS hospital in between his normal patients. Was he being paid by the NHS for working at that time, I suspect so, I would also suspect his NHS secretary wrote up the report.
    Do all of the people involved above examples lack a moral code? No, they simply have very little accountability. They do not have the external consequences to their actions. The child protection process is rigged in Children’s Services favour because effectively there are very few checks and balances. The complaint system is a farce, as even at stage 3 the local authority can include two former employees out of a panel of three. It is not exactly easy to argue against a solicitor who knows the system. The police very rarely investigate white collar crime, especially against establishment figures, they are being forced to now in a limited way.

    Reply
    1. angelo granda

      The point,as I see it Sam,,is that respondents don’t get a fair hearing as per Article 6.

      Sarah ,herself, often replies to parents stories by asking ‘Where were your lawyers when this was happening’? Or ‘you must engage with your lawyers and question SW malpractises’.
      When parents do so,however, they are advised by their solicitors to cooperate and not to question sw’s or Guardians and told that if they do so, it will be held against them that they are uncooperative. Thus parents keep quiet under threat ( pressure from professionals).
      They operate to a protocol as directed by the Court executive which is intrinsically unfair.Thus injustices are bound to occur and sw’s will take advantage of it for evermore unless the LEGAL SYSTEM is reformed.
      I think lawyers (particularly respondent lawyers) should stick to the Law and leave the practicalities of social work such as support systems,transparency etc. on the backburner. They should concentrate on putting their own house in order first!
      If social workers ignore the most basic fair procedures and don’t even talk to or involve parents in assessments,LAWYERS SHOULD OBJECT STRONGLY.

      Reply
      1. Sarah Phillimore Post author

        They do. What you describe is unlawful.
        If I advise parents not to ‘fight’ it is because the case against them is so strong that fighting will make it worse. They are entitled to reject this advice and I will fight if they tell me to. But you cannot simply assume that a lawyer who does not ‘fight’ is corrupt, lazy or stupid. Sometimes the absolute worst thing you can do is to ‘fight’.

        But I suspect this goes back to the fundamental disagreement between you and I which makes many of our exchanges sterile – you don’t think there are large numbers of people struggling to parent well, I do.

        Reply
  38. angelo granda

    Yes,what I described is unlawful. Surely,there can be little doubt in anyones mind given the many,many judgments against them added to the verItable plethora of written and verbal anecdotal evidence from children and parents against them that the CS are dysfunctional and act unlawfully! They fail in their duties and they break the Law.
    In many cases, parents don’t break any laws or refuse to go along with the court procedures; the sw’s do!

    Sarah, just like you, I accept that some families have serious problems. I have never been at odds with you about that. So we don’t disagree fundamentally about it.Sadly, those families become just as much undeserving victims of the system as the totally innocent when their human rights are abused and they are liquidated permanently.

    I have not accused any lawyers of corruption,laziness or stupidity.You used those words.I have more respect than that.I have merely put a parents view that there is a conflict of interests . You told us that you have conflicting loyalties which are difficult to balance. I have explained why I think the court protocol obliges lawyers to give too much latitude to LA’s.
    I have also suggested that solicitors may have a financial interest in maintaining a ‘cosy relationship’ with LA’s. However,that doesn’t automatically mean they are corrupt.It is because of the conflict inherent with working for both parties in different cases contemporaneously.I thing the Court system should be changed.

    All comments welcome

    Reply
    1. Sarah Phillimore Post author

      I just cannot agree that the ‘court protocol obliges lawyers to give too much latitude to LAs’ mainly because I just don’t understand what it means.

      the LA bring the case so in that sense they are ‘in charge’ – but at every step I can challenge their evidence, seek more or better evidence. I don’t ‘give latitude’ to anyone; I take a case and look at the evidence. As does the judge.

      Most of the time. I accept that things can and do go badly wrong. But I honestly don’t think that is because anyone is in the LA’s pocket.

      Reply
  39. angelo granda

    In my last three posts, I have tried to explain why parents think the Court protocol allows too much ‘latitude ‘ to be shown towards their opponents.
    I have attempted to outline examples of how a ‘conflict of interests’ may lead to an excess of ‘discretion’ being shown which is tantamount to ‘judicial bias’.
    Solicitors are not stupid but they often display apparent obtuseness towards the often glaring contrast between the opinions of sw’s and the facts presented by parents and other written evidence.Because of it the sw evidence is not tested rigidly .Their honesty is rarely questioned ,neither is that of the Guardian because of the Court protocol whilst parents are open to attack from anyone.

    Sarah, their evidence is given under oath thus when it can be proven untrue,why do lawyers not accuse sw’s and Guardians of dishonesty and discredit their case? Just as LA and Guardians legal teams discredit respondent evidence.

    This is another constructive question question which addresses fundamental failings in the court process which may lead to Article 6 being contravened.
    How can proceedings possibly be fair if sw’s and Guardians are permitted by lawyers to present unlawful evidence under an oath of truth ?

    Reply
    1. Sarah Phillimore Post author

      Angelo, I think it would be much better if you were able to put your comments into a post which I could publish – otherwise your arguments are going to get lost in the comments section.

      Reply
  40. angelo granda

    Sarah, Unfortunately,I am unable to make professional,quality, neutral dissertations of the kind which can be published. In that respect,I rely on you to analyse my comments and open them to discussion (as you did with my concerns re article3.)
    This is why I value your contributions,Sarah! Most commentators like C, Jerry,Anon,Kate and even. Mr. Hemming will not take the time to respond. I am merely an ordinary parent expressing a point of view and I shall next be addressing Article 8.

    Once again,all comments welcome.

    Reply
      1. angelo granda

        As long as you are constructive you may cut and paste what you wish.
        Given that lots of parents have been crying out into cyberspace for years to no avail, it is a refreshing change to have ones views acknowledged . I respect CPR for putting all angles.It is about time parents voices were heard!

        Reply
  41. angelo granda

    PERJURY AND UNLAWFUL EVIDENCE

    The dictionary says “perjury is the wilful and corrupt taking of a false oath in regard to a material matter in a judicial proceeding”.

    Out of court proceedings

    There are correct procedures and guidelines applicable to child-protection cases. According to the above definition, giving fraudulent evidence to other professionals (e.g. pre- court or at a child protection conference or at a LAC review) is not itself strictly perjury as it is not given under oath. Yet the investigation proceedings are part and parcel of a legal process carried out under the auspices of the Children’s Act.
    For social workers to be fair and honest, the legal guidelines should be followed. The General Public have confidence in the Department. The Courts have. When advising us to cooperate with Children’s Services, solicitors assume that proceedings are going to be fair ones and that, in the interests of children, guidelines will be obeyed. We do too! The outcome is influenced dishonestly by unfair process. The CS have a cavalier approach to what are crucial issues to families. Proceeding ar e brief and if someone is in a hurry to get somewhere else even more so. No real ‘in-depth’ enquiries are made. No searching questions are asked of anybody.. Very often no official minutes are taken and only brief and biased notes are scribbled down by the key social worker.
    This is how social workers obtain the decisions they want. They present faulty, incomplete evidence and contrive in other ways to make proceedings unfair. Children and families suffer for it. This sort of thing goes on regularly throughout the country. It is only too clear that correct procedure is flouted too often for comfort.
    The social workers know the correct procedures but ignore them at will. Each case is different and private. Parents alone know to what extent the social worker is being dishonest.
    Whatsmore, it is useless to ask them to accept contradictory written or verbal evidence. Why? Because they have a convenient rule between themselves that once set down in the files, falsehoods cannot be amended. They fester and can be used against you for evermore.

    Court proceedings

    At Court, this type of behaviour should not be allowed to continue. So-called facts are put forward by social workers but legal guidelines and procedures are not followed during their compilation. Such illicit behaviour should be stamped on by the Court.
    We are usually advised to get a Children’s Legal Panel solicitor and our natural penchant is to trust the ones we choose implicitly. We rely on their advice. When social workers set out to deceive everybody from the outset, surely it is inadvisable to allow them to continue in the name of co-operation. When solicitors collaborate with deceptions like that, they are working against us.

    In civil proceedings concerning a newspaper libel case recently, the Court found that written assertions by professional journalists were libelous if they did not tally with the freely-available facts. If a newspaper published false opinion or so-called facts without investigating the actual facts properly and fairly they were not fair comment.
    We might think the same should apply in a Family Court. Professional written and verbal comment presented as material evidence intended to influence court decisions must be considered fraudulent if it does not tally with the facts freely available to the perpetrators at the time it is made.
    It cannot be argued reasonably that sworn material evidence comprising false statements in court applications, core assessments, care-plans and other documents are not perjury because they are or were honest belief and professional opinion TO THE BEST OF THE KNOWLEDGE AND BELIEF OF THE PERSON SWEARING THE EVIDENCE ‘at the time when they were submitted under oath and registered at Court. Such honest belief and opinion is impossible without honest, professional ‘in depth’ enquiry in accordance with legal guidance. A willful omission to follow guidelines and correct legal procedures as to establishing freely available facts effectively constitutes a willful intent to establish fraudulent evidence.
    Our lawyers could often assert that Local Authority oaths of truth are incorrectly attested when illegal applications and/or false statements and documents have been accepted as authentic and registered at the Magistrates (Family Proceedings) or at a County Court. They could easily present the freely available facts themselves.iT APPEARS AS IF THEY ARE FORBIDDEN FROM CHALLENGING CS EVIDENCE .

    If done early on, this would, of course, seriously affect the way a Court assesses a case. It would substantially undermine both the Local Authority evidence and the evidence of sycophantic Guardians. It would also affect the way in which the Court deals with a case at the point they come to contrast the credibility of the Local Authority and the respondent parents. It is absolutely basic that if correct procedures are not adhered to scrupulously during a case enquiry, then it is not a fair one.
    For example if a social worker does not question you fully as to your disagreements and will not even talk to you or anyone else before making his statements and assessments then he has to be concocting them unfairly. He has to make up what he is saying and thus nine times out of ten much of it will be false.Parentse are entitled to a hearing before a fair andn impartial court or tribunal as prescribed by the judiciary. I fear that, in a lot of cases, Children’s legal panel solicitors will not argue cases strongly in the false belief that sw’s make statements to the best of their knowledge. They always give preferential treatment to social workers and have an intrinsic, safety-first attitude which works against parents. I am not the only one who says this. In any other court setting but a family proceedings one, many cases would be thrown out!

    As far as Article 6 is concerned- The very basic essential to a fair hearing is total honesty and SW’s. lack it.

    Reply
  42. angelo granda

    How has it happened that three comments have tagged theirselves on to the end of this thread?
    Can it be corrected?

    Reply
    1. Sarah Phillimore Post author

      I suspect the problem is that Carol Bird has asked repeatedly for all her comments to be deleted, but then she returns and posts more – which I have deleted as per her request.

      It could probably be corrected but I don’t have the time at the moment so sorry for any confusion.

      Reply
  43. Sam

    I sat in a court waiting room in the not too distant past, when I noticed a lawyer go up to the client and say the judge wants to see us in chambers. So the client sat there for another 40 ish minutes completely unable to instruct her lawyer, whilst orders were made about a child’s life. It would not be so bad but I had already raised the same problem about the same court beforehand. When on earth will procedures be tightened up?

    Reply
    1. Sarah Phillimore Post author

      This should NOT be happening. Wall LJ said many years ago now this practice is NOT Human Rights Act compliant. It seems we have slipped back. I object to this when it is suggested. Everyone should. People should complain, complain, complain.

      Reply
      1. Sarah Phillimore

        Finally tracked down the authority -http://www.transparencyproject.org.uk/talking-to-the-judge-without-your-client-in-court-is-potentially-unlawful/

        Reply
  44. Angelo Granda

    One assumes that when a Judge commands the three or four sets of counsel to meet him or her pre-hearing in their chambers that the Public can rely on all of them to act with absolute propriety in accordance with their legal,professional ethics and training. They will not do or say anything which will compromise justice for the families involved.

    However,i have serious misgivings when it comes to the private meetings which take place pre-hearing between the respective lawyers in private interview rooms ( or when they are full,in the Public Court foyer).The Sw’s and Guardians are included in the meetings.THE PARENTS ARE NOT!
    Of course, some time before the date of the final hearing there are professionals meetings between lawyers,sw’s,Guardians,psychologists etc.etc. during which vital decisions as to the nature of the care-plan are taken(i presume). The SW’s are not impartial,neither is the Guardian and because of ‘conflicts of interest’ it cannot be said with complete certainty that the solicitors are .
    Likewise ,during out-of- court proceedings between participant members of CP conferences,strategy meetings etc. parents are excluded very often
    and even when they do attend, the others discuss matters privately before they are called into the room. They are not fully involved ,not kept fully informed and precluded freom giving opinions and making their stance known.
    SW’s and sometimes Guardians are dishonest in Court.Heaven knows what is said about about families in these private discussions!

    As regards Wall LJ and High Court pronouncements in general. Malpractice and sometimes corrupt methods are embedded in the system. Like spanish practices within an industry,they become so well-entrenched that they are impossible to remove no matter how many years ago they are found to be non human rights compliant.

    I suppose this is why unfortunate lawyers are treated with more than a little derision by some parents and campaigners.They complain but nothing gets done.
    Radical solutions are absolutely necessary to clean the mess up. Child protection should be taken out of the LA hands and placed elsewhere.Massive changes to the Court system are called for also.
    Historic analogies exist within the judiciary. In the industrial arena, spanish practices were so well established amongst dockers and print-workers that docks and print-works had to be closed down.

    Isn’t it time the talking and good intentions stopped and decisive action is taken? Wall LJ spelled it out years ago and now it is time for barristers like Sarah to enforce justice.

    Reply
  45. Sam

    The point is Angelo that both the Judge and the lawyers know what they are doing is wrong . I haven’t checked but I also suspect all would also be in breach of their codes of ethics. However , the group mentality must come into play, it would take some courage to take on His Honour We have done it like this in this court for years, and the brave lawyer that did is hardly going to be in His Honour’s good books and would probably pay for that in future proceedings. As far as I am aware Judge’s do not get sacked, I have noticed that a few of them take compassionate leave after awful cock ups so it really is difficult to tackle these practices. Saying that I do think it is probably a minority of Judges that behave like this. I also do think that if a Judge has previously been a family lawyer they are more likely to uphold the law, as they understand the consequences to a family rather than a former criminal or chancery lawyer, who would probably rather not have these cases on their list. Family law seems to me to be the poor relation to it’s more glamorous cousin criminal law despite parting a family being the most draconian measure a court can take since abolition of capital punishment.

    Reply
  46. Angelo Granda

    Thank you,Sam ,for that view and i agree with it.As i have said,the bad practices and methods are so deeply embedded in the system, it cannot be changed without radical action.The system has to be replaced by a new one,in my opinion.In the final analysis at present,the Judge operates in a legal void .It is instilled into him or her to apply their own discretion. If they want to hold one of these meetings , on the principle that what they do is in the ‘best interests of the children’ they can do as they wish. Similarly ,they apply that discretion in the matter of CS malpractice.
    Sarah will object if it happens in one of her cases but that goes against the judge and clearly most of her colleagues will not object.
    In my opinion,Sarah should appeal to the high court on the grounds that the case has not been conducted correctly before the case is allowed to continue in such an instance.

    However,i wonder if anyone agrees with me that radical change is called for.I know Sarah agrees the system needs changing and that we should look closely at the possibilities.Clearly ,the plans for open courts ,transparency and press reporting will be a major change which i support.Do you think it is the panacea? I don’t because parents will still be up against a Local Authority,CS and solicitors with an ‘interest’ in removing their children.
    What i want dearly is for Sarah and yourself to go to the next annual gathering with some positive ideas and propositions for radical change.
    As you can expect,i can think of many ( probably too extreme for Sarah) but can any one else come up with anything ? Can you clarify how the drugs and alcohol model might be applied to n child-protection in general,for example ,or do you have grander plans?
    We should be more constructive in the new year and try to come together.

    Reply
  47. Sam

    Angelo are you coming to the next conference? If it’s anything like the last one it really will be well worth going. Yes I do think the drug and alcohol court model should be applied to more care cases. It obviously not suitable for all , such as physical injuries but were the parent has to evidence change within a time-scale , it really has to be thought of as an appropriate alternative to the way cases are dealt with now.
    I believe there would be fewer miscarriages of justice as the judge gets to know the parent more in depth , the parent is a participant rather than a spectator.

    Reply
  48. ian josephs

    There is a panacea ! No punishment without crime ! No child taken from a sane parent unless that parent has been charged with or been convicted of a crime against children or other family member;
    QED

    Reply
  49. Angelo Granda

    I don’t think it will beneficial to anyone,least of all the children,if i were to go to a CPR conference. There is little point in sitting listening to a bunch of professionals unable to accept the same fundamentals as oneself.
    It would be rather like a capitalist attending a Communist Party rally. I would not fit in.

    Whilst i agree with both Ian Josephs and Sarah that there is no general corrupt conspiracy to steal children ( in other words i am not a conspiracy theorist) i am afraid i cannot ignore FACTS.

    Some Local Authorities find it financially ‘prudent’ to remove children into care rather than follow the Law and provide support to families to keep children at home.Even though it costs four times more to maintain children in care, they find it financially expedient to do so.They have illegitimate aims! The result is that children’s human rights (3 and 8) are contravened.
    If their aims were legitimate ,the authorities would follow the guidelines and frameworks.They fail that test.
    ian Josephs talks of his remedy or ‘panacea’.I cannot agree with him as logic tells me that a Local Authority with illegitimate aims will soon arrange for a criminal conviction of a parent were that the criteria for removal.I don’t want to sit down with him at the next CPR conference and argue with him.He is a lawyer;i am not.
    Likewise , whilst i agree with Sarah that open courts will be a good thing,that doesn’t go far enough.The Local Authority should be expelled from the decision-making process because it is not impartial.
    She is a lawyer too and I don’t want to sit down with her and her colleagues to argue fundamentals.
    It’s hard enough dealing with SW’s and solicitors week in week out without getting in to arguments with trained barristers.
    As for SW’s who might attend,they are professionals too and i see too much of them already. I prefer to comment from the sidelines,i think.
    If the CPR were to arrive at some sort of consensus and accept the same fundamentals as i do,it would be different.I would be willing to sit and listen.

    Reply
  50. Sam

    Angelo I appreciate your views and I can’t tell you what you should do. The conference is for everyone, it’s not about professionals telling parents what to do. Those type of professionals would not attend anyway. It’s for anyone who is concerned about the child protection system and a significant number of people are including social workers. Last year I had conversations with other parents, grandparents, psychologists ,lawyers and a judge etc. No one belittled me. I am not a professional , just a fairly average human being. As a parent you can also maintain your anonymity and call yourself what you like. You also do not have to talk to anyone you can just sit and listen if you wish. The venue is small enough not to be overpowering and close to public transport.
    As you say it may not be for you, I just found it a really useful experience last year , it actually gave me hope that change was possible in the child protection system , if not for my children maybe for the next generation.

    Reply
  51. ian josephs

    Sorry but punishment without crime must always be wrong.Your argument that the ss would arrange criminal convictions is hard to sustain since the standard of proof is beyond reasonable doubt instead of “more probable than not” which is the standard in family courts.You could use your same argument against arresting dope sellers on the grounds that police could plant the dope on anyone they did not like but in fact I reckon that is a pretty rare occurrence and such secrets are hard to keep.
    No babies should be legally be stolen from sane mums on the grounds of Crystal ball prédictions of future emotional harm .Can you Angelo or you Sam disagree with that?

    Reply
  52. Sam

    No Ian I don’t disagree with that. However there obviously are cases when emotional harm may be a probability due to home circumstances and these parents should be supported in the first instance to stop that occurring. I also think the system has it’s head in the sand if they think passing children around numerous placements is not actually going to cause emotional harm.

    Reply
  53. Angelo Granda

    Unfortunately,when there is no evidence to convict,SW’s are working together in ABE interviews with children on video..
    Guess what, the SW’s flout the correct procedures just the same as they do in Family Court proceedings. Besides that,,some suggestions have been made that the BAL OF PROBS standard of proof be adapted for use in cases of criminal child abuse.Not only that, as the cases involve vulnerable children,hearings would probably be in private too.
    Police could not get away with planting dope but on the grounds it is in the best interests of children ,a lot of leeway is granted to the Authorities in child-protection.
    Why can’t you accept,anyway, Ian , that sometimes,children may have to be taken into care when the parent/parents are not criminal. Child-protection orders are not made to punish anyone.No charges are laid .Let’s be absolutely honest! Sometimes there is no choice,for example,lunacy when a parent is completely out of control. To cater for such cases,i think temporary orders are acceptable with the aim of rehabilitation always at the heart of the care-plan and with time-scales of six months maximum.Naturally,all alternatives to removal would need to be examined first. I think that is reasonablke.What is not reasonable is that LA’s would abuse that concession too because they have illegitimate aims. They would concoct cases of lunacy . The LA should not be involved at all in bringing cases. We have to put that responsibility in the hands of a neutral body perhaps the NHS or a civil equivalent of the CPS.
    Of course,i agree that children should not be stolen. They shouldn’t be taken permanently at all except in the most dire case when nothing else will do and if it is contemplated at all, the case must go to a court with higher standards than currently. Forced adoption should be banned,in my opinion.
    I commented near the beginning of this thread that any professional who will permanently liquidate a family lacks humanity and i add here that,in my opinion, they are extremely inhumane when they take babies away from a mother;s bosom at birth. Even puppies are not taken from the bitch until they are 8 weeks old.I don’t know what the age is for kittens.

    Reply
  54. Sarah Phillimore

    Re #CPConf2016, I think you misunderstand what it is trying to achieve. It isn’t about lawyers and social workers meeting to reinforce each other’s ideas. Two of the main speakers last year were a parent and a care leaver.

    Sites and comments like these have limited use. Its good to share thoughts and debate BUT at some point we have to stop talking and actually do something.

    #CPConf2015 has proved itself with actual achievement – the journalist Louise Tickle attended and met a parent whose story will be published in the Guardian this month. That required a court hearing about allowing journalists to publish information about care proceedings
    http://www.bailii.org/ew/cases/EWHC/Fam/2015/2991.html

    And I hope that will pave the way for others.

    There is also the Transparency Projects guidance for recording meetings between parents and professionals – which came out of a question from a parent about recording.

    No one should come to the conference if they feel uncomfortable about doing so. But please make sure the reasons you give for rejecting it are based in reality.

    Reply
  55. Pingback: Talking to the Judge without your client in court is potentially unlawful | The Transparency Project

  56. Angelo Granda

    REALITY is the operative word in child-protection in my opinion. Many decisions are made on the ‘cloud-cuckoo land’ reports of incompetent SW’s who don’t investigate issues and concerns properly.The guidelines direct that they should check their facts before making reports but they don’t
    For example , Sw’s reported that a four year-old girl disclosed to her that a father used to lie on top of her in bed whilst Mum danced round and round the bed dressed as a witch with spiders all over her.
    Before making that report to decision-makers and assessors, ‘the SW should have interviewed the parents and reported her concerns immediately to the Police so they could investigate.
    The Sw might have asked Mum whether she possessed a witch outfit or did she keep live spiders in a jar somewhere> Police could have searched the house for offending material and grilled the father.
    This is an extreme example but lawyers should wake up!

    Sarah,will you accept that if SW’s do not follow the frameworks correctly and allow parents to give their side of the story, their evidence is unlawful? If they don’t conduct a case correctly,they poison it and the Court should send them away to do their job correctly.Then a lawyer’s first job would be to check that guidelines have been followed.

    Accept that fundamental and it will be worthwhile coming to the conference.I could then put my case for automatic ,legally funded appeals on that basis.

    Reply
  57. Angelo Granda

    I would add ,for readers who are interested, that in the extreme example above, despite there being no physical evidence of it and without any Police investigation of circumstances ever being instigated ,the civil Family court found that the little girl had been sexually abused over a long period of time and that Mum was implicated in the abuse in other words she had full knowledge of it. Both parents denied it.
    The Family Court removed their three children for adoption.None of the family have seen or heard of any of the children since. There were several members odf the extended who would have cared for the children but the SW’s flouted the guidelines and did not investigate that possibility.

    Reply
  58. Sarah Phillimore

    I can’t keep making the same points, over and over. I have explained why failure to follow guidelines is a problem BUT it doesn’t automatically render care proceedings null and void. Some failures are more serious than others. SW failings don’t necessarily mean parents are competent and children are safe.

    If extended family members wished to be assessed, then this should have been made clear to the court at the time.
    The SW do not decide who is and who is not assessed. The court does.
    If SW do not ask parents for their side of the story then the parents engage with their lawyers and tell their story to the Judge. The SW does not get to decide which children are removed and which children stay. The court does.

    The conference is for people to share their views and experiences, not impose their views on other people. If you don’t wish to participate that is absolutely up to you.

    Reply
    1. Angelo Granda

      Thanks for your advice which you do keep giving over and over ,with respect,but apparently,you will not address the fundamental problems which i,in my turn ,have described more than once.
      I will try and make it clear once more. The hearings are not fair and impartial in line with Article 6. Parents do engage with their solicitors but those professionals have ‘conflicts of interest’ and fail the family. I have already described at some length on this thread the toxic nexus between solicitors and Local Authorities.
      Many parents have reported the same views and professionals should listen. I am not saying the individual solicitors are corrupt ,it is the system which is bad.
      Quite right,no-one should impose their views on other people.I had already decided not to try and do so .However,it wiould be a waste for me to go and try to outline my ideas to eliminate solicitors from the child-protection process completely to professionals who think the court system is fair as it is.
      According to the Law,Sarah,the ‘Working Together’ frameworks of the Children’s Act DO have to be followed scrupulously and i have that on very high authority. IT IS THE DUTY of the LA (CS department) to establish whether there are extended family members who could care for children AND TO EXAMINE ALL OTHER ALTERNATIVES TO REMOVAL..In practice’they ignore the frameworks.Extended family are not allowed in court to make their wishes clear to it and ,in theory, respondents are not supposed to tell anyone about the case.

      Reply
  59. Sam

    So Angelo do you think if the courts were open it would eliminate all bias? With regard to solicitor’s in the Family Alcohol and Drug Courts , I think parents attend without lawyers after the first hearing.

    Reply
    1. Angelo Granda

      No,Sam,How can opening the courts up eliminate all bias ? The situation would still exist where SW’s give unlawful evidence due to the illegitimate aims of the LA and where solicitors have a conflict of interests.
      In my opinion , we have to have independent sw’s. Either the freelance ones who are sometimes called in now or by disbanding the CS in its present form and replacing it with a new national organisation which is completely detached from the LA’s ,possibly a civil service department.
      As far as the solicitors are concerned, the problem is that first and foremost they are profit-making businesses . Whilst they can do a good job in private law cases ,where they are acting either for Dad,Mum or the children with Dad and Mum set against each other and the children in the middle , a problem arises in Public Law cases ; these cases generally involve vulnerable families against the Local Authorities and ninety-nine per cent of the time public legal funding pays the fees.They either represent the LA, the father or mother or the children. Because they represent the LA’s regularly ,obviously they maintain a cosy-relationship to encourage future commissions and ,when representing parents they fail to do their job impartially but not only that they cut their costs to the bone in many different ways not least by employing people with little experience and little ability.( you may have noticed the shoddy paperwork,spelling and how often solicitors are replaced by clerks and young trainees). Also they fail by not attending out-of-court conferences and strategy meetings to act as advocates and mentors for their parent clients as the Children’s legal panel rules say they should. That means the CS gets away with abusing the guidelines and so on.The cpc’s just rubber stamp their plans because parents,being vulnerable cannot ensure fair procedure themselves.
      There is no doubt in my mind that their money saving instincts ( caused partly by the low rates paid by the legal-funding commission) and their association with the LA’s break the rules of fair-play and impartiality.The rules require that they must act in the best interests of their clients and be ‘uninfluenced by any factors other than a client’s best interests’. Yes,even above the child’s best interests when they act for parents,which we all know, they often cite as the reason why proper procedure does not necessarily have to be followed meticulously which in its turn permits the Authorities to abuse the system more or less at will.
      Readers will be aware that it is usually at the early stages when cases are corrupted and i feel pretty certain the outcome of a case is set against families because of the lack of advocacy and intervention on parent’s behalf during the early decision-making out-of -court proceedings ( which are part and parcel of the overall legal process).
      By contrast with firms of solicitors, not only are barristers very highly trained,capable advocates ,having undertaken many years training, not only do they have to pass strict examinations in every aspect of the law but also they are well trained to be absolutely impartial,they have to follow their ethical code strictly and they have no interest in making profits for directors and shareholders.
      i hope i will not be ridiculed if i suggest,therefore, as a radical reform,solicitors be confined to private law cases in which the Local Authority have no involvement.That will go a long,long way to eradicating the ‘conflicts of interests’ which lets down the current system,in my opinion.Barristers should be permitted to apply for legal-funding contracts and represent parent clients from the outset of cases throughout both the pre-court proceedings and at court,if necessary. If this were to happen,I believe much money will be saved .Many cases will not go to Court because the barristers ,having used all their powers of mediation, at the same time ensuring that ‘Working Together Frameworks are complied with and that assessments are fair and impartial will render many Court hearings unnecessary especially adversarial ones. I would add that the Chairman of the Bar and the Chair of the Family Law Bar Association ( both Q.C’s )have suggested this before me in a letter to the Under-Secretary of State. The letter also contains criticism of the current position ,that ‘serious damage to the Public interest has been caused’ by the situation existing and that ‘the standard of representation being provided in many cases is so poor that unjust outcomes have occurred’.
      I agree and i think i speak for many other parents aswell.

      One problem which would linger if their advice was followed by the government is that barristers would still face a balancing act ( as described by Sarah). That is they would have competing duties to their clients,the best interests of children and to the Court.

      For that reason,i wonder what can be done about that. Once again,in my opinion, we have to think radically. Do we want to continue as we are with an adversarial system or should we replace it with something entirely different?
      In actual fact, if a barrister has a duty to parents,the children and to the court then why should we have more than one involved? After all, every party involved has the best interests of the children at heart ( with the possible exception of the Local Authority in truth). Therefore, i suggest that LA’s be removed from the decision-making process and have its duties confined to the supply of support services and foster-care etc. as and when it is ordered by a court or a cp conference chairperson. To help prevent unfairness, their current power to take proceedings should be placed into the hands of a National Child-Protection Commission , a department of the Civil Service ( but a different one to those employing sw’s i suggested earlier).Another suggestion is that the barristers who oversee the cases be promoted to DJ and, operating as representatives of the High Court ,they will have the power to make orders for expert assessments and so on as they see fit. That will mean the experts chosen will be truly independent and impartial. The Guardian and the SW’s will have no influence over the choice. If matters warranted a Court hearing and a protective order,the DJ will have the power to issue it .That will save county court time and give the circuit judges more time to hear their other precious private law cases.
      The DJ’s court ( or recorder’s possibly) will be informal ,held around a round table and parents will be allowed to talk to the Judge.

      These are radical ideas and given the conservatism of the establishment ,i don’t imagine for many moments these suggestions will ever be taken up but i hope they might give readers food for thought and one or two of them will be taken seriously. I await the comments of interested readers.

      Sam can you go into a bit more detail for me about what you envisage as an improvement on the system we have?

      Reply
  60. Sam

    Angelo To put it simply I would want something such as PACE to regulate Childrens Services and support for families would be the norm not a discretionary service as at present. All meetings to be recorded. I would also want IRO’s to be truly independent and not in the pay of the LA. I would want open adoption as the default position if adoption is absolutely necessary. I would open up the courts and allow parties to share court documents with the media if jigsaw identification is not possible of individuals in the case. Judges would have to look at the reality of the care provision within a county before making a care order. Unfortunately I am not a Government Minister nor do I have a fairy godmother!

    Reply
  61. Angelo Granda

    I agree that would be an improvement.
    On the subject of open courts , do you mean friends,relations and members of the general public should be allowed in court ? Will anyone be allowed to volunteer testimony? On the subject of court documents ,do you propose that respondents be allowed to show them to other people besides the media and solicit evidence from agencies such as school and doctors?On the subject of identification,next time you go to Court,take a look at the Court bulletin board and you will see that the children involved are named on the daily court notices openly.Anyone can identify them.
    Will the media be able to identify parents,social workers ,Guardians and lawyers ?Also the Judge..
    I hope you don’t mind these questions but i am not cear what you mean by open.
    I believe the press have had access for a year or two already but i see very few cases in the Local paper.

    Reply
    1. Sarah Phillimore Post author

      No children are ever named anywhere. Cases are listed simply by number so the adults surnames don’t appear either. I don’t know what on earth you have seen at a court but it simply cannot be children’s names.

      This is not permitted and I can’t believe it is happening. I have never seen anything like it in any court I have been to and I have been to many in London, the South East and South West.

      The press can attend but can’t report without permission from the Judge. So many don’t bother.

      Reply
  62. Sam

    Obviously you couldn’t have a free for all in court . I do get your point about being able to show documents to other professional’s but really this needs to be done pre proceedings . I don’t think that hearings are normally open.

    Reply
  63. Angelo Granda

    Whether or not i am mistaken about court bulletins or not , (I’ll check it out next time i go),this does not change the fact that i think your ideas are constructive.
    Why would it be a free-for-all if the Public were allowed in and if parents were able to solicit evidence in their favour? When you say you would open up the courts ,do you mean they would be open to Public scrutiny so justice can be seen to be done just like normal courts are? Or would the hearings still be held in private with an accredited journalist in attendance?
    Please explain,if you have the time,Sam.Go into a bit more detail for a simple soul.

    Reply
  64. Angelo Granda

    On the subject of legal funding ,Sarah, i understand that home and contents insurance policies include cover for legal representation and advice for any policyholder who has court action taken against them( up to £50,000 and more)..
    Can you confirm this belief?
    If it is true then would it be a good idea to make this sort of legal cover insurance compulsory for families in the same way as motor insurance etc?
    Who pays fees for parents in America,do they have insurance schemes or a legal aid scheme?

    Reply
    1. Sarah Phillimore Post author

      As far as I know most insurance policies do cover legal action BUT I thought that was only to defend claims for damages if someone was hurt in your home. I can’t see that any insurance company would simply agree to fund people to start litigation about anything. The costs are huge.

      But I don’t know, people would have to check their own policies.

      America, as far as I know, is geared entirely to people who have money. There is a public defender scheme for people accused of crimes but I don’t think it is that well regarded. I don’t know what happens to people who have their children removed by the State but I suspect the American system can’t be anything like as generous as the one in the UK.

      Reply
      1. Angelo Granda

        Sarah, I found this advice in a leaflet.

        Does legal expenses insurance cover all legal actions and defences?

        Insurers are usually prepared to cover only certain causes of action and defence. There is, for example, generally no cover available for:
        • bringing/defending defamation proceedings; or
        • funding actions where state funding is more widely available (via the Legal Services Commission in England and Wales – or the equivalent in any other UK jurisdiction) – for example, in relation to child care proceedings, criminal trials, immigration appeals and applications for judicial review.
        Of course, for a price, it may be possible to purchase legal expenses cover for most known causes of legal action or defence.

        I know this isn’t one of the usual topics discussed on this forum. For those interested, if it is possible to purchase cover,even at a price, i think parents will be wise to do so. It would be an improvement on the government legal aid system. They would have better representation because cover would be for £50-100000.
        It would also mean a better living for lawyers!

        There is a catch,though. The leaflet goes on to say that if solicitors advise the insurers that there is less than a 51-49% chance of the polycyholder winning any case ( even 50/50 isn’t good enough) they may not fund the case. This gives them an escape clause ,of course, which depends on the solicitor ( who is chosen by the insurer).

        So, as with the legal funding commission,you will not get anything if the solicitor chooses not to recommend it.

        Reply
        1. Sarah Phillimore Post author

          Thanks for that link. Very interesting. Perhaps Ian might wish to concede that the system in the UK is marginally better in that we don’t put parents in that kind of financial hardship to contest care proceedings.

          Reply
  65. ian josephs

    Easier to stop punishment without crime and only remove children from criminals or temporarily from those accused of a serious crime involving children.
    Of course parents in family courts should be able to invite friends and relations for support.
    It is pathetic to see young teenage mothers alone in court because their parents,relatives and friends have all been refused admittance whilst social workers,cafcass types,experts,and lawyers gang up against them.

    Reply
    1. Sarah Phillimore Post author

      The only reason a young mother would be alone in court is if they had taken extremely poor advice from some dangerous idiot like yourself and sacked their lawyer.

      Reply
      1. ian josephs

        Whether they have a lawyer urging them to accept an interim care order or whether they are alone with no legal aid is irrelevant.Why do you object Sarah to parents threatened with the loss of their children having their own parents and other relatives sit by them in court to give comfort and moral support?

        Reply
        1. Sarah Phillimore Post author

          I don’t object to people having moral support in court and usually judges are happy to allow it.
          What I object to is you once again painting a hysterically false picture of what actually happens in court.

          Reply
  66. Angelo Granda

    There is a problem . Some parents are told by their solicitors that relatives and friends are not allowed to participate in proceedings,cannot attend court because hearings are private and that it is against protocol. If parents approach independent professionals for support, they are apparently forbidden by protocol from talking to them or expressing an opinion.
    Sarah,you say you would welcome moral support in court and usually judges are happy to allow it.You say Ian paints a false picture.
    Therefore Courts must be inconsistent.Some allow it and some don’t. Those which don’t should be brought into line. As i have alreasdy said,often parents are instructed not to discuss issues with friends ,relations and anyone not party to the case such as the press. Is that a false picture or not? Are there any parents out there who will arbitrate?

    Reply
    1. Sarah Phillimore Post author

      If people who are NOT parties want to come into court, it is ultimately the decision of the Judge but if other parties object, the Judge may not let them in. Different things happen in different cases, not necessarily because Judges are capricious or inconsistent but because different cases have many different dynamics and many different types of friends and family. Some for e.g. sadly just come to cause trouble rather than offer support, and those will not be allowed in.

      You are not allowed to show documents to people who aren’t parties or discuss information that might lead to identification of children BUT courts are not going to strictly enforce this with regards to close family members, so long as you don’t publish information on social media for e.g.

      Reply
      1. Angelo Granda

        You are not allowed to discuss information with or show documents to your own medical and educational advisers either,even though they are already know your childs name and are fully aware proceedings are ongoing. Yet the CS and the Guardian can,of course. They can see and discuss ( and identify the child) to anyone they want.
        That is fair enough only when those professionals are responsibly carrying out a FAIR AND IMPARTIAL INVESTIGATION OF FACTS with legitimate aims.

        It isn’t fair when they are set solely on removing a child before they start which often happens.
        That is the problem with the system.
        Unfortunately,lawyers seem unable (or are unwilling) to recognise it even when it is blatantly obvious.In other words,parents call their impartiality into question too.
        The more and more this forum goes round in circles,the more and more I will say the system is beyond redemption and radical changes are called for.
        However,i am going to try and give it a rest from now on and concentrate on fundamental humanitarian concepts . These are lacking in the current crop of sw’s and lawyers.
        I await the next reference to the cycle of deprivation or the ‘feral underclasses’.

        Reply
  67. ian josephs

    I am reluctant to accuse Sarah of making a deliberately false statement but I think she knows as well as Angelo and I do that time and again frightened young teenage mums face the mighty fostering and adoption machines that are knon as “family courts” with no parents, no partner (if he is not the father of the baby) and no friends or relatives to give them moral support or to act as character witnesses because the usher simply refuses them admission. All they do have is a supine legal aid solicitor who advises them to “go along with social services” ,agree to care orders and not to fight the system ! Shame on British Justice !

    Reply
    1. Sarah Phillimore Post author

      I am not reluctant to accuse you, once again of scaremongering nonsense.

      It’s nothing whatsoever to do with the usher who comes into court. The Judge determines who comes in. If you want someone to come in, ask the Judge.
      Legal aid solicitors are not ‘supine’. I am a legal aid lawyer. I am not supine. Nor is any other legal aid solicitor I know and I suspect over 20 years I have met rather more than you have.
      ‘Character witnesses’ are an irrelevant distraction. It doesn’t matter how many friends and neighbours say how lovely you are. the Judge is interested in what the parents have to say about the LA case against them. Parents MUST engage with that, not put up petitions on line or get random people to come to court and say they are great.

      If I say ‘go along with the order’ it is because the case against the parent is so overwhelming that to ‘fight’ it is simply to highlight everything that is a problem for this parent and may end up with some very damaging findings being made against them at an early stage.

      But of course, parents don’t have to listen to me. They can listen to you instead, and see how far that gets them.

      Reply
    1. Sarah Phillimore Post author

      Don’t think it is in breach of any law, its just very unlikely. LAs often offer to pay for a few hours advice for relatives who are seeking a Special Guardianship Order. But I have never known a LA offer to pay for a parents legal fees – and why would they, parents will get non means, non merits tested legal aid in care proceedings.

      And, as far as I know, the court has absolutely no power to compel LA to fund anything.

      Reply
  68. ian josephs

    This quote from the Guardian shows that even Sarah Philimore can get it right occasionally !!

    “In addition, Sarah Phillimore, who co-founded the Transparency Project to increase understanding of the family courts, says that there is an increasing phenomenon of “confirmation bias”.
    She says she has seen it in many cases where social workers begin by looking at parents in a particular way, and then ignore or distort the evidence that doesn’t fit into the narrative that they are a bad parent and need to have their children adopted.”

    Reply
  69. forced adoption

    Where Sarah gets it wrong however is her idea that friends and relatives of parents have only to ask the judge to get admitted.The usher simply refuses them admittance so they never see the judge at all !
    Sarah is right when she says that journalists do not bother to go to family courts as they can only report with permission of the judge ! It is rather like asking a journalist to report on a football match but with the condition that neither the teams nor the players are named either before the match, in play, or when the result is known ! The account of the match can only be published after a delay in which the text is censored by the referee !
    Not much joy there I think…………………

    Reply
    1. Sarah Phillimore Post author

      Then the friends/relatives ASK THE LAWYER WHO REPRESENTS THEIR FRIEND/RELATIVE. And the lawyer will ask the judge. It is not the business of the usher to dictate who does or who does not come into court. they do the bidding of the Judge.
      I agree, and have said this many, many times, that we should have more openness in reporting family cases.
      Sadly, some journalists are very irresponsible, such as your dear friend Christopher and this may explain why plans to encourage more journalists in court have stalled.

      Reply
  70. Hols

    I once tried to help a friend who’d asked me to come down and support her at the court. I phoned my friend’s solicitor beforehand, and said that I had information that would help my friend, and I wanted to appear as a witness. The solicitor was very interested, and encouraged me to come. When I got to the court this same solicitor was very hostile and rude to me, and made it very clear that I was to leave. I found out later that she “warned” the social workers that I was there. My friend rang to apologise, and said she was so glad that someone had witnessed how sick it was. Her solicitor also told her to stay away from me – I saw the email. I was so hurt – I was trying to do the right thing. cruel, cold people.

    Reply

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