Author Archives: Sarah Phillimore

The Mental Capacity Act 2005

Care proceedings may involve parents who are said to ‘lack capacity’. In this post we will discuss what that means and what are the implications for the care proceedings.

The Law – the Mental Capacity Act 2005

The Mental Capacity Act came into force in 2007 and provides a statutory framework for people who lack capacity to make decisions for themselves, or who want to prepare for possibly losing their capacity in the future.

It sets out who can take decisions for people who lack capacity, in which situations, and how they should go about this There is a Code of Practice that needs to be read along side the Act. The Act covers England and Wales and applies to everyone who is over 16 years of age.

You must keep this Act separate from the Mental Health Act 1983 – that Act deals with people who have been diagnosed with a mental health problem that is so serious they pose a risk to themselves or other people and therefore they need to be detained and treated, even if this is against their will.

The Mental Capacity Act applies to everyone who looks after someone who lacks capacity to make particular decisions for themselves. This includes social workers and doctors, as well as family or professional carers.

Key principles of the MCA

These are set out at section 1 of the Act.

Presumption of Capacity. All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. You can’t assume someone can’t make decisions just because they have a particular disability.
Maximising Decision Making Capacity. Everyone should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision. For example, some people with learning disabilities find it much easier to understand information that is presented in pictures, rather than lots of words.
Right to be Unwise. Making an unwise or eccentric decision doesn’t automatically mean you lack capacity; people are allowed to make decisions that others might think unwise.
Best interests. Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences. Try to involve the person who lacks capacity as much as possible.
Least Restrictive Option. People who lack capacity should not be restricted unnecessarily; when making decisions for someone else you need to be careful to examine if what you are doing poses the least interference with that person’s freedoms.

The Court of Protection

It was established by section 45 of the MCA. It can:

decide whether a person has capacity to make a particular decision for themselves;
make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
appoint deputies to make decisions for people lacking capacity to make those decision;
remove deputies or attorneys who fail to carry out their duties.

The Court of Protection Rules of 2007 have been amended by new rules which come into force in April and July 2015 – see this blog post by Lucy Series which discusses the important changes they make to issues of transparency and participation.

See further the website www.courtofprotection.com for more information and discussion.

What does ‘lack of capacity’ mean?

An inability to make decisions

Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

There is an interesting post here by suesspicious minds about someone who was said to lack capacity due to his alcoholism; the court heard evidence from a variety of sources and decided that he did have capacity.

If you ‘lack capacity’, to make a certain decision, this is more serious than just being unable to make up your mind or finding a particular decision difficult; someone who lacks capacity will generally find it hard to understand information, retain it or weigh it up and then communicate their decision to someone else.

Lack of capacity is defined in section 2 of the MCA:

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a )a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3 of the MCA sets out what is meant by an inability to make decisions. A person is considered unable to make a decision for himself if he is unable:

to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

If a person ‘lacks capacity’ to take part in legal proceedings, that doesn’t necessarily mean they can’t make any decisions at all – it may depend on the seriousness and complexity of the decision before them. For example, a decision about what to have for lunch is much less taxing than a decision about what instructions to give your lawyer in court.

The leading case discussing the test to determine capacity remains Masterman-Lister [2003]. The test of capacity which was identified here has been incorporated into the MCA 2005.

I am told I need an assessment of my capacity – what does this involve?

An assessment of someone’s lack of capacity is covered at para 4.38 of the Code of Practice. This is an important issue which needs to be dealt with quickly as it can have serious consequences for care proceedings, both in terms of necessary assessments and the fairness of the court process. The court should consider issues of capacity at the earliest opportunity. Your lawyer is under an obligation to raise this issue as soon as they have any doubts about your capacity to instruct them.

The court does not require expert evidence from a psychologist or psychiatrist in order to make a decision that you do or do not have capacity, but these experts are often asked to provide an assessment.

However, if it is very clear a person lacks capacity – due to being in a coma for e.g. – then the court is likely to be satisfied by just a letter from the treating doctor.

The Code of Practice considers the necessary practical steps for someone who is assessing capacity . The assessor must understand what the person being assessed is asked to decide about. The assessor must also bear in mind the five principles of the MCA as set out above and start from the presumption that the person has capacity.

The assessor should explain all the information relevant to the decision. The explanation must be in the most appropriate and effective form of communication for that person.

See para 4.49 of the Code of Practice.

Check the person’s understanding after a few minutes. The person should be able to give a rough explanation of the information that was explained. There are different methods for people who use non- verbal means of communication (for example, observing behaviour or their ability to recognise objects or pictures).
Avoid questions that need only a ‘yes’ or ‘no’ answer (for example, did you understand what I just said?). They are not enough to assess the person’s capacity to make a decision.
But there maybe no alternative in cases where there are major communication difficulties. In these cases, check the response by asking questions again in a different way.
Skills and behaviour do not necessarily reflect the person’s capacity to make specific decisions. The fact that someone has good social or language skills, polite behaviour or good manners doesn’t necessarily mean they understand the information or are able to weigh it up.
Repeating these steps can help confirm the result.

The British Medical Association publish a useful interactive tool to help doctors assess a patient’s capacity.

What follows from an assessment that you lack capacity

Appointment of a ‘litigation friend’

In family proceedings, if a person is found to lack capacity then they become a ‘protected party’. and they will need a ‘litigation friend’ who will conduct the proceedings on their behalf.

See Part 15 of the Family Procedure Rules, Practice Direction 15A and Practice Direction 15B and this guidance.

According to the Practice Direction, a litigation friend must

fairly and competently to conduct proceedings on behalf of a protected party. The litigation friend must have no interest in the proceedings adverse to that of the protected party and all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the protected party.

Anyone can be a litigation friend, as long as they can meet the requirements of the rules and Practice Directions. The requirement that you must not have an interest in the proceedings which might be against the interests of the protected party may mean it is not sensible to have a close family member acting as a litigation friend – see the case of P v Nottingham in 2008, discussed below, where the mother’s parents and brother had put themselves forward as litigation friends but were also putting themselves forward to care for her child. The court held they should not have been appointed.

The Official Solicitor

The court may invite the Official Solicitor to act as the litigation friend. The Official Solicitor provides access to the justice system to those who are vulnerable by virtue of their young age or lack of mental capacity.

However, it should be noted that the OS’s department has only about 20 lawyers and 40 caseworkers. It has very little spare capacity. Therefore, the OS should only be invited if there is no other person suitable or willing to act.

See the note of the OS’s position on being invited to act as a litigation friend
the 2014 checklist for the appointment of a litigation friend
For discussion of the role of the OS and also judicial reaction to John Hemming’s allegations of corruption in the family justice system, see P v Nottingham CC [2008]. This case went all the way to the European Court – which dismissed complaints that the mother’s Article 8 and 6 rights had been breached by the appointment of the OS.

Court of Protection rules

Part 17 of the Court of Protection 2007 rules which governed the appointment of litigation friends in the Court of Protection has now been replaced by the Court of Protection (Amendment) Rules 2015.

Lucy Series describes the impact of these amendments:

The amended rules now allow a person to be represented by an ‘accredited legal representative’ or even just a ‘representative’ without a litigation friend. An accredited legal representative is defined as ‘a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court’. So presumably the President will shortly announce a scheme of accreditation for certain lawyers who can represent the relevant person without taking instruction from a litigation friend. I would be really interested to see whether this may lead to changes in how they represent the person – for example, will we see a move towards a more adversarial model, like that adopted in the Mental Health Tribunals, where representatives basically argue for what the person wants and not for what they don’t want, rather than arguing for what (in their view) is in the person’s best interests?

Can I still give evidence in my case if I am found to lack capacity?

See para 1.4 and 1.5 of the Practice Direction.

Where the court determines that a party does not have capacity to conduct the proceedings, the court may well also have to determine whether that party is able to give evidence and if so whether ‘special measures’ are required. Expert evidence is also likely to be necessary for the court to make such determinations. However, as in relation to the question of litigation capacity, the court may consider that evidence from a treating clinician who has a good understanding of the party’s difficulties may be sufficient. If the treating clinician is provided with information about the legal framework, the clinician may be able to provide that evidence more readily and more quickly than an expert instructed to give an opinion as to the party’s ability to give evidence.
Where the protected party is able to give evidence, the representative will wish to consider (and ask the expert to consider) the impact on that party of giving evidence. When making a determination as to whether that protected party should give evidence, the court may need to consider whether the impact of giving evidence would be so adverse to their condition that it would not be in that party’s best interests to do so. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.

I don’t agree I ‘lack capacity’ – what can I do?

Capacity can fluctuate over the course of proceedings. See para 4.1 of the Practice Direction 15B:

Litigation capacity may be lost or regained during the proceedings as a result of deterioration or improvement in the impairment of, or disturbance in the functioning of, the party’s mind or brain. The necessity for expert evidence or evidence of a treating clinician as to a party’s capacity can therefore arise at any time during the proceedingsThe assessor should give reasons why they believe the person lacks capacity to make the decision, and provide objective evidence to support that belief. The assessor must also show they have applied the principles of the Mental Capacity Act.

Therefore, even if you were assessed at the start of proceedings as lacking capacity, you could argue that the situation has now changed.

If you simply don’t accept the first assessment, It might be possible to get a second opinion from an independent professional or another expert in assessing capacity. Chapter 15 of the Code of Practice offers other suggestions for resolving disagreements over the issue of capacity, such as mediation. But this may not be practicable if you are in care proceedings and decisions have to be made quickly. Your best option may be simply to apply to the court to get another assessment.

Restrictions on freedom of movement under MCA

What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

An important question is whether or not living arrangements made for someone who is mentally incapacitated amount to a ‘deprivation of liberty’. If they do, that deprivation has to be authorised.

The Deprivation of Liberty Safeguards (DoLs) set out in the MCA apply to anyone in a care home or hospital. These provide an independent check on whether or not these arrangements are made in the best interests of that person. If the person is living somewhere other than a hospital or care home, the Court of Protection must authorise that placement.

As Lady Hale said in the Cheshire West case (which we discuss below):

It is merely a recognition that human rights are for everyone, including the most disabled members of our community and that those rights include the same right to liberty as everyone else.

DoLs were introduced by the MCA after the UK was found to be in breach of Article 5 of the ECHR in 2004. Article 5 protects people’s right not to be deprived of their liberty unless this is due to a small number of limited circumstances, such as being convicted of a crime.

The safeguards involve:

an independent assessments of a person’s capacity to consent to care arrangements and consideration of what is in their best interests.
those being assessed are entitled to assistance from a representative, an independent advocate and non-means tested legal aid to appeal against their detention in the Court of Protection.

What does ‘deprivation of liberty’ mean?

EDIT – The Government on 14th March 2018 published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report. The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course. Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

The circumstances in which someone can be said to be ‘deprived’ of their liberty have caused much discussion and debate, particularly when considering people who would end up with restrictions placed on their freedoms wherever they went, to stop them hurting themselves.

This issue finally got before the Supreme Court in 2014 in the case of Cheshire West. The court decided that the essential questions they needed to ask were:

Is the person subject to continuous supervision and control?
Is the person free to leave?

It was NOT relevant to the issue of whether or not someone had been deprived of their liberty to say that they did not object or they were living in a relatively ‘normal’ placement. As Lady Hale said in paragraph 46 of her judgement in Cheshire West:

…But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

For a different view about the philosophical arguments that underpin our understanding of what makes a ‘deprivation of liberty’ see the judgment of Mostyn J in Rochdale MBC v KW [2014] discussed here at the Mental Capacity Law and Policy blog. The Judge commented at paragraph 7 of his judgment that he found it impossible:

…to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

At paragraph 17 he set out his fundamental disagreement with the majority of the Supreme Court:

It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.

Mostyn J remains bound by the decision of the Supreme Court. However, The Law Commission are currently reviewing this area of law around deprivation of liberty and hope to report by 2017. The report will consider how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed. This will include considering the legislation underpinning DoLS in its entirety.

Expert Pyschological Reports

Why do the courts need psychological reports?

A tension exists in court proceedings. It is the Judge who hears the evidence and makes the decision. But some matters – such as physical or mental ill health – may be outside the Judge’s understanding. In recent years, instruction of psychiatrists and/or psychologists had become almost the default position in care proceedings, in an attempt to assist the court to understand why a parent was struggling to provide good enough parenting.

However, leading up the Children and Families Act 2014 (see below), there were serious concerns about not only the ubiquity of such reports (used in over 90% of cases), but their reliability and ultimate usefulness in determining care proceedings.

For comment on the widespread use of expert reports in 2010 see this paper by Dr Judith Masson of Bristol University: The use of experts in child care proceedings in England and Wales, benefits, costs and controls.

Two of the key problems of care proceedings – the time they take and the amount they cost have strong links to the substantial use of experts. Delay has been a major problem in care proceedings since before the Children Act 1989 (Murch et al 1987), at least for the cases heard in the higher courts. It was hoped when the Act was implemented that cases would be completed in 12 weeks but this was never realized. Throughout the 1990s the length of cases increased. Three separate reviews in 1995, 2001 and 2004 failed to do more than describe the problem. The use of experts was identified as a major cause of delay through difficulties identifying suitable experts, chosen experts being unable to take on cases because of their workload or not meeting the court deadline for completing the work and requests for reports being made late in the proceedings. A key factor in this was a shortage of experts but further examination of this with medical experts established that there was a very large pool of potential experts who had never been asked to take on this work (CMO 2006). It has also been suggested by social work academics that the problem is “the pursuit of an unattainable level of certainty‟ through repeated assessments of the parents (in)ability to care (Beckett and McKeigue 2003).

David Bedingfield considered the issue of expert evidence in an article for Family Law Week in 2013:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent to judge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

Judges, and Parliament, have been seeking an answer to that question since at least the late 18th century. One of the responses always canvassed is this: cede the decision to a specialist panel of experts. Courts, however, have been jealous of their jurisdiction to decide disputes, and (it is submitted) for good reason: courts in the United Kingdom have deservedly developed a reputation for fairness and for careful consideration of the competing interests involved in any dispute. Courts have also now developed a considerable body of law, giving to litigants and their advisors at least some reasonable certainty that like cases will be treated alike.

This move to restrict expert evidence must therefore be understood as part of a century-long struggle by the judiciary to maintain its jurisdiction, and to deal with the ever-increasing complexity presented by disputes involving scientific or medical evidence.

The report of Professor Ireland – poor quality of expert reports?

Evaluating Expert Witness Psychological Reports: Exploring Quality’ was a study by Professor Ireland in 2012 and funded partly by the Family Justice Council. However, they later distanced themselves from the conclusions of this study over concerns about its methodology. See this post on Pink Tape.

The report examined 126 psychological reports provided in family proceedings. The results were disturbing – over two thirds of the reports were rated as ‘poor’ or ‘very poor’.

There was also evidence that unqualified experts being instructed to provide psychological reports. One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.

Only around one tenth of instructed experts worked in external clinical settings; most therefore had become ‘professional expert witnesses’ which has implications for the expert’s ability to keep up to date with changing practice in his/her field.

Professor Ireland recognised the limitations of this study, which is of a preliminary nature only, but the findings do raise questions about the quality of such expert reports.

Particular areas of concern were noted:

An over-reliance on psychometrics, use of defunct assessments, and using assessments with no validity;
The under-use of recognised methods to assess risk in cases involving domestic violence, general violence and sexual violence;
a proportion of experts commenting on mental health and yet having no indicated background in that area.

These are significant concerns and merit further research using a larger sample of reports.

The Family Justice Council reported in 2011 (having seen Professor Ireland’s draft report)

[The report] points to serious issues both with the quality of reports and the qualifications of those carrying them out. We are not surprised in view of the concerns we heard expressed throughout our work about the quality of reports generally. We recommend that studies of the expert witness reports supplied by various professions be commissioned by the Interim Board, subsequently the Family Justice Service.

Agreed quality standards for experts in the family courts are clearly needed and we recommend that they should be developed. The FJS should lead this work. Meeting the standards could be a requirement for payments to be approved by the LSC. Criteria could include adherence to set timescales, membership of appropriate professional bodies and completion of specified court focused training, peer review and continuing professional development.

In May 2016 Professor Ireland was subject to disciplinary action concerning this report. She was accused of reaching conclusions that were not justified by the data and threatening fellow psychologists with legal action if they did not withdraw complaints about her research. However, on June 8th 2016 ALL CHARGES DISMISSED

How do the courts now approach the use of expert psychological reports?

The Children and Families Act 2014 has attempted to put clear limitations on the use of expert evidence.

Under section 13(6) the court will now only give permission for an expert to be instructed where it is ‘necessary’ in order to resolve the proceedings justly.

Under section 13(7), in order to decide whether or not such an instruction is ‘necessary’ the court will have particular regard to:

any impact which giving permission would be likely to have on the welfare of the children concerned,
the issues to which the expert evidence would relate,
the questions which the court would require the expert to answer,
what other expert evidence is available (whether obtained before or after the start of proceedings),
whether evidence could be given by another person on the matters on which the expert would give evidence,
the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,
the cost of the expert evidence, and
any matters prescribed by Family Procedure Rules.

Practice Direction 25B which sets out the duties of an expert, how the expert’s report should be set out and what arrangements must be made to bring the expert to court. With regard to standards expected of experts, the expert must:

have knowledge appropriate to the court case,
have been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
is either regulated or accredited to a registered body where this is appropriate,
have relevant qualifications and has received appropriate training, and
comply with safeguarding requirements.

Paragraph 9(1) of the Practice Direction sets out onerous requirements for the content of the expert’s report. It must:

give details of the expert’s qualifications and experience;
include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;
state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;
give details of the qualifications of any person who carried out the test, examination or interview;
answer the questions about which the expert is to give an opinion and which relate to the issues in the case.

When compiling the report, the expert must

take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;

If there is a range of opinion on any question to be answered by the expert, he or she must:

summarise the range of opinion;
identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court.

Importance of the procedural rules on instructing experts.

For a case where it all went horribly wrong, see Re C (A Child) [2015]. The procedural requirements had not been followed and the Court of Appeal noted:

Both the Magistrates and the Circuit Judge had ignored the statutory scheme that determines how applications for expert instructions should be made, set out in section 13 of the Children and Families Act 2014, part 12 FPR 2010, part 25 FPR 2010 and PD 25B (paras 24 – 29; para 33).
The Magistrates’ reasons were inadequate (para 22).
The manner in which the burden had been placed on the Father to demonstrate that a report was unnecessary was ‘simply wrong’ and the entire procedure had been unfair to him (para 13; para 34).
There is guidance in existence as to how litigants in person can be afforded access to justice which had not been followed in this case (paras 14 – 16).
It was also wrong for the order made to have been worded so as to direct the Father to undertake a medical procedure; this violated an ‘elementary principle’ and was ‘unlawful’. It was also wrong to direct costs to be shared, particularly where those costs were an unknown quantity (paras 35 – 37; para 50).
The Circuit Judge’s approach to the appeal of the Magistrate’s decision, that this was a case management decision which was an exercise of discretion which should not be interfered with, was a ‘superficial approach to an important question of procedural justice’.

For a further example of the serious consequences that arise when an expert goes beyond their remit see G, Re [2019] EWFC B70 (13 June 2019) where the court agreed a complaint should be made to the expert’s regulatory body.

Some appointed experts in various fields such as counselling are not required to be members of any regulatory body and therefore careful thought should be given about whether or not they should be instructed.

This matter has been raised directly with the President at the end of 2019 and it is hoped that serious consideration will be giving to amending the Practice Direction so that any expert reporting on a child must be a member of an external regulatory body. For further discussion see this open letter to the President of the Family Division.

Guidance from The Transparency Project

The Transparency Project published a guidance note on the use of experts in family proceedings in September 2018 and this can be downloaded here.

Good Enough Parenting

There is no such thing as a ‘perfect parent’

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

Mr Justice Hedley in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)

The state can only interfere in your parenting if your child is beyond your control, you have caused your child significant harm or there is a serious risk you will cause that harm in the future.

Being a less than ‘perfect parent’ does not mean that professionals can assume you will cause significant harm to your child. You just have to be ‘good enough’. Its a phrase you will often hear in care proceedings. But what does it mean?

Who are parents and why is parenting important?

You don’t have to be a child’s biological mother or father to be involved in ‘parenting’ that child. Anyone in the wider community who is involved in the child’s development could be said to be part of the parenting process – such as grandparents, teachers, friends and neighbours.

A child needs ‘good enough’ parenting to survive and grow into a healthy, functioning adult. His basic needs for food and shelter have to be met to ensure his physical survival, but meeting such basic needs is not the only obligation of parents. If a child’s emotional needs are neglected or ignored, that is likely to have a serious impact on the child for all his life. Developing a healthy ‘attachment’ between child and adult carer is an important part of parenting.

What do we mean by ‘good enough parenting’?

Donald Winnicott was an English paediatrician and psychoanalyst and probably the first to use the phrase ‘good enough parent’. He recognised that it was unrealistic to demand perfection of parents, and was interested in finding out what made them ‘good enough’.

He believed that the key to healthy development was rooted in a child’s relationships and interactions with others.

With the care that it receives from its mother each infant is able to have a personal existence, and so begins to build up what might be called a continuity of being. On the basis of this continuity of being the inherited potential gradually develops into an individual infant. If maternal care is not good enough then the infant does not really come into existence, since there is no continuity of being; instead the personality becomes built on the basis of reactions to environmental impingement.” (Winnicott, 1960)

Dr Jennifer Kunst describes Winnicott’s ‘good enough mother’ as:

… sincerely preoccupied with being a mother. She pays attention to her baby. She provides a holding environment. She offers both physical and emotional care. She provides security. When she fails, she tries again. She weathers painful feelings. She makes sacrifices. Winnicott’s good enough mother is not so much a goddess; she is a gardener. She tends her baby with love, patience, effort, and care.

Components of good enough parenting

Talking, reading, playing, cuddling and communicating

The Joseph Rowntree Foundation report ‘Assessments of Parents and Parenting Support Needed’ showed that professionals who worked with families, together with those in health and education, could agree on the main components of good enough parenting:

meeting children’s health and developmental needs;
putting children’s needs first;
providing routine and consistent care;
parental acknowledgement of any problems and engagement with support services.

‘Risky’ or ‘not good enough parenting’ was basically the reverse of this: not meeting the children’s needs, not putting them first etc. but it would be important to recognise if the risky behaviours identified represented a ‘one off’ or was a more regular part of the parents’ approach.

Part of being a good parent is preparing your child for environments outside your home. See the Social Mobility and Child Poverty Commission report in October 2014, ‘State of the Nation 2014: Social Mobility and Child Poverty in Great Britain’, which looked at what Frank Field highlighted as the essential skills children need by the time they join the reception year at primary school:

To sit still and listen;
To be aware of other children;
To understand the word no and the borders it sets for behaviour;
To understand the word stop and that such a phrase might be used to prevent danger;
To be potty trained and able to go to the toilet;
To recognise their own name;
To speak to an adult to ask for needs;
To be able to take off their coat and put on shoes;
To talk in sentences;
To open and enjoy a book.

Things which can get in the way of good parenting.

The Department of Education reviewed the literature in this field as part of the Childhood Wellbeing Research Centre programme (see further discussion below).

An extensive body of evidence shows how factors such as domestic abuse, substance misuse, mental health problems and learning disability undermine parenting capability and increase the likelihood of significant harm, particularly when they occur in combination. Moreover, parenting does not take place in isolation. Parents are also influenced by stressors within the wider environment and family, such as poor housing, poverty and unemployment that make parenting more challenging and increase the likelihood that difficulties will arise.

Is there a universal definition of ‘good enough’ parenting?

While we can probably all agree about the importance of the basic needs of providing a child with food and clothes, problems may arise in care proceedings when professionals don’t share the same outlook as the parents as to what is important for the children and why.

The participants in the JRF report above were aware that they bought their own personal beliefs about parenting to the process and there could be problems if those doing the assessing came from a very different background to the parents being assessed.

For example, parents from some cultures may have strong views on whether or not it is acceptable to physically punish children. Are they automatically not ‘good enough’ parents because their approach is not universally accepted? The NSPCC and others in 2015 raised serious concerns about a judgment that appeared to ask for ‘allowances’ to be made for those from other cultures who smacked their children.

The DoE commented:

Practitioners reported concerns about making judgements and assumptions or being too accepting of behaviours, assessing whether parental practices were the cultural norm or individual beliefs and behaviours, and fears about damaging parent-practitioner relationships.

This can be a particularly acute problem when dealing with parents with learning disabilities or mental health problems, who may face discrimination and lack of understanding from professionals.

It is important to give every parent an opportunity to show they can be ‘good enough’, with support if necessary and professionals need to be wary of making automatic negative assumptions about certain parenting styles. The key issue of ‘significant harm’ must always be borne in mind.

The case of BR (Proof of Facts) [2015] set out a useful precis of what is commonly identified as ‘positive’ and ‘negative’ factors that might impact on parenting.

However the court stressed that the existence or otherwise of any of these factors proved nothing – children can still be abused in a supportive family environment or thrive in care of physcially/mentally disabled parents. But they offer a useful framework for an assessment, and highlight the areas that professionals will be looking at.

Risk factors

Physical or mental disability in children that may increase caregiver burden
Social isolation of families
Parents’ lack of understanding of children’s needs and child development
Parents’ history of domestic abuse
History of physical or sexual abuse (as a child)
Past physical or sexual abuse of a child
Poverty and other socioeconomic disadvantage
Family disorganization, dissolution, and violence, including intimate partner violence
Lack of family cohesion
Substance abuse in family
Parental immaturity
Single or non-biological parents
Poor parent-child relationships and negative interactions
Parental thoughts and emotions supporting maltreatment behaviours
Parental stress and distress, including depression or other mental health conditions
Community violence

Protective factors

Supportive family environment
Nurturing parenting skills
Stable family relationships
Household rules and monitoring of the child
Adequate parental finances
Adequate housing
Access to health care and social services
Caring adults who can serve as role models or mentors
Community support

Assessing parents’ capacity to change.

How can parents move from ‘not good enough’ to ‘good enough’? In July 2014 the Department of Education published ‘Assessing Parental Capacity to Change when Children are on the Edge of Care’

Executive Summary Introduction

Assessing Parental Capacity to Change when Children are on the Edge of Care is an overview of current research evidence, bringing together some of the key research messages concerning factors which promote or inhibit parental capacity to change in families where there are significant child protection concerns. It is intended to serve as a reference resource for social workers in their work to support families where children’s safety and developmental functioning are at risk. Its purpose is also to assist social workers and children’s guardians in delivering more focused and robust assessments of parenting capability and parental capacity to change, and assist judges and other legal professionals in evaluating the quality of assessment work in court proceedings. The report brings together research findings from a wide range of disciplines, which are not otherwise readily available in one location for social workers, family justice professionals and other practitioners with safeguarding responsibilities.

The research evidence covered in this report confirms that change is both important and necessary when children are suffering abuse and neglect. However it also makes it clear that change is difficult for everyone, but even harder for those parents who are struggling with an interlocking web of problems. It also takes time. Change is a complex process, and although it can be supported and promoted through effective interagency interventions, it cannot be imposed. It will not happen unless parents are proactively engaged. These are the key messages from the review.

The report notes:

The assessment of parenting capability and capacity to change needs to reflect the complex reality of child protection cases, including consideration of the individual challenges and wider environmental problems faced by families; how multiple problems interlock; and the potential impact of factors such as coercion or the pressure on parents to present themselves in a positive light.

Addiction

Addaction – One of the UK’s largest specialist drug and alcohol treatment charities.

Adfam – Improving support for families affected by drugs and alcohol. The only national umbrella organisation working specifically with and for families affected by drugs and alcohol. Aim is that no family member in need of support should go without it.

Al-Anon – An international organisation with over 800 support groups in the UK and Republic of Ireland. Al-Anon is a fellowship of relatives and friends of alcoholics who share their experience in order to solve their common problems.

Alcoholics Anonymous -A fellowship of men and women who share their experience, strength and hope with each other that they may solve their common problem and help others to recover from alcoholism. National Helpline 0845 769 7555 he**@**********************rg.uk.

Alcohol Concern -Leading national charity working on alcohol issues. Their goal is to improve people’s lives through reducing the harm caused by alcohol and to change the drinking culture in this country.

Drugrehab.com – a substance abuse guide for parents and useful guide for PTSD and substance use disorders

DrugScope -The leading UK charity supporting drug and alcohol professionals. A source of independent information on drugs and drug related issues.

Frank – Offers advice on drugs – whether you are a user or afraid that someone close to you is being affected by drug abuse. Also gives guidance on all types of drugs and their effects.

Narcotics Anonymous – A non-profit fellowship or society of men and women for whom drugs had become a major problem. Members are recovering addicts who meet regularly to help each other stay clean.

National Treatment Agency – The NTA was created as a Special Health Authority in 2001 to improve the availability, capacity and effectiveness of drug treatment in England. The NTA’s role was to ensure treatment services in England delivered on both the public health and criminal justice agendas, reflecting the interests of the Department of Health (DH), responsible for funding the NHS as well as public health services, and the Home Office, the lead Whitehall department on drugs policy and crime reduction.

Alcohol Testing – What are the options?

There is a very informative article in Family Law Week by barristers Julie Stather and Farooq Ahmed which discusses the options available in testing for alcohol consumption.

The leading case remains London Borough of Richmond v B & W & B & CB [2010] EWHC 2903 (Fam) which offered guidance as to the evidential worth of hair strand testing:

When used, hair strand tests should form only part of the evidential picture. They should not be used in isolation to reach evidential conclusions: “You cannot put everything on the hair strand test.”
The results of hair strand tests should only be used to determine whether or not there has been excessive alcohol consumption by the use of the cut off level.
A level lower than the cut off level is consistent with abstinence or social drinking. There is no agreed cut off level for the line between abstinence and social drinking.
“The tests are not designed to establish abstinence or social drinking” (paragraph 22(iii)).
Research evidence suggests that 10% of the results obtained by hair strand testing are false positives.
Hair strand testing is therefore valuable to form part of an evidential picture when the aim of the testing is to determine whether a person has been consuming more than 7 units of alcohol a day, on average, over the testing period. However, it is only valuable when used in conjunction with other evidence such as other forms of testing and other forensic evidence.

What do children think about opening up the family courts?

There is serious concern that opening up the family courts, for increased media access for example, is going to harm children and is not what they want.

The Children’s Commissioner investigated this issue in 2010 and said:

For our research, we spoke to more than 50 children and young people, and what they said raises a number of serious concerns. The overwhelming view was that reporters should not be allowed into family court proceedings because the hearings address matters that are intensely private. The events discussed are painful, embarrassing and humiliating and the children and young people said their deeply personal details were the business of neither newspapers, nor the general public.

They did not trust the press to get the facts right and felt strongly that articles would be sensationalised. They were worried about being identified and fear being bullied as a result.

It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge’s ability to make difficult and often life changing decisions in the child’s best interests.

You can download the report here.

There has been a further report by the ALC and NYAS in 2014 which you can read here.

The children interviewed were not happy with the idea of information about their cases being widely accessed and did not think that was a solution to dealing with criticisms of the family court system.

In the context of early discussions young people said they are not always informed about what is happening in their case – before or during proceedings. They said out dated paternalistic approaches by professionals are not in children’s interests: they need honesty and accurate information about processes and decisions about their care and at a time when they can make informed choices.

Directly involving children in the court process

In care proceedings children are represented by a solicitor and a guardian – this is called the ‘tandem model’ of representation. The solicitor may also instruct a barrister for certain court hearings. The child’s solicitor takes instructions from the guardian about what to do in the child’s best interests, unless the child can show that he/she has enough understanding to give their own instructions. This post considers various options open to the child who wants to directly express their wishes and feelings.

I don’t agree with what my guardian is saying and I want my own solicitors

If the child has a good enough understanding of what the proceedings are all about, s/he can chose to be represented by their own solicitor. The guardian should be alert to the possibility that an older child may not agree with the guardian’s recommendations, and that the child may want to give instructions directly to the solicitor.

Representation of children in proceedings is dealt with by Part 16 of the Family Procedure Rules.
The key test about deciding if a child has ‘sufficient understanding’ remains Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, which is discussed in the case of CS v SBH, link below.
For a case where the Judge decided a 14 year old child was able to instruct his own solicitor, see Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (29 June 2018)
A child can also write a letter to the judge or ask to speak to the judge directly – see discussion below.

There is a useful case from the Court of Appeal W (A Child) [2016] EWCA Civ 1051 which discusses the relevant test to see if a child is capable of instructing their own solicitors. The Court of Appeal decided that the Judge at first instance had been wrong not to allow a 16 year old girl to have the solicitor of her choice; there was a confusion over issues of ‘welfare’ and ‘understanding’.

The Court of Appeal agreed the relevant rule of the FPR to be applied was Rule 16.29 which sets out that when a solicitor is appointed for the child, the solicitor must represent the child in accordance with the instructions received from the guardian. If the solicitor thinks that the child wants to give instructions which will conflict with those received from the guardian and that the child is mature and understands enough to give his/her own instructions, the solicitor MUST conduct proceedings in accordance with the child’s instructions (rule 16.29 (2))

If the child wants to terminate the appointment of their solicitors, the child may apply to the court and the Judge will consider this application and the solicitor and the guardian will have a chance to have their say (rule 16.29 (7)).

See further the decision in CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019) which considered how the FPR may differ depending on whether or not there was a new set of proceedings or that the child wished to instruct new solicitors within existing proceedings. The court set out at para 64 of the judgment the factors to consider about whether or not a child was able to instruct solicitors in an appeal:

The level of intelligence of the child
The emotional maturity of the child.
Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.
Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.
Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position…. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.
Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.
The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

I want to talk directly to the Judge

There is a very helpful article here from Family Law Week which discusses how Judges have become more willing recently to meet children and talk to them. However, the Judge must not use this meeting to collect evidence from the child, or test the existing evidence, because that that has to be done in court with everyone present. But this meeting will allow a child to tell the Judge what he or she wants and will allow the Judge to explain what the court does.

Such a meeting between Judge and child is not intended to undermine or displace the work of the guardian, but it is hoped that such meetings could help the child understand what is going on and feel reassured that people are listening.

Obviously, for very young children this could simply be overwhelming and not very helpful but it will be a matter for the individual Judge in each case whether he or she thinks meeting the child is the right thing to do.

Familly Justice Council Guidelines

In April 2010 the Family Justice Council published guidelines for Judges who want to speak to children. The purpose of the guidelines is:

… to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the Judge has understood their wishes and feelings and to understand the nature of the Judge’s task.

What happens when meeting the Judge goes wrong?

For an example of the problems that can arise if a Judge doesn’t follow the guidelines, see the case of KP in 2014. Although this was a case involving the Hague Convention, (a dispute between separated parents who wanted the child to live in another country) the points raised apply to any situation when a Judge speaks directly to a child:

Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line. Having summarised the submissions of Mr Turner and Mr Gupta, with which we agree, we can set out the reasons supporting this conclusion in short terms as follows:

i) During that part of any meeting between a young person and a judge in which the judge is listening to the child’s point of view and hearing what they have to say, the judge’s role should be largely that of a passive recipient of whatever communication the young person wishes to transmit.

ii) The purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge. As the Guidelines state, the task of gathering evidence is for the specialist CAFCASS officers who have, as Mr Gupta submits, developed an expertise in this field.

iii) A meeting, such as in the present case, taking place prior to the judge deciding upon the central issues should be for the dual purposes of allowing the judge to hear what the young person may wish to volunteer and for the young person to hear the judge explain the nature of the court process. Whilst not wishing to be prescriptive, and whilst acknowledging that the encounter will proceed at the pace of the child, which will vary from case to case, it is difficult to envisage circumstances in which such a meeting would last for more than 20 minutes or so.

iv) If the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced.

v) The process adopted by the judge in the present case, in which she sought to ‘probe’ K’s wishes and feelings, and did so over the course of more than an hour by asking some 87 questions went well beyond the passive role that we have described and, despite the judge’s careful self-direction, strayed significantly over the line and into the process of gathering evidence (upon which the judge then relied in coming to her decision).

vi) In the same manner, the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives.

I want to give evidence in court

The courts used to be reluctant to agree that children should give evidence in court, but there has been a shift in attitude more recently as we see with the decision of the Supreme Court in re W [2010] UKSC.

When deciding whether or not a child should come to court and give evidence, the essential test is whether justice can be done without further questioning of the child. To answer this question, the court looks at two issues:

The advantages that the child giving evidence will bring to the determination of the truth.
The damage giving evidence may do to the welfare of this or any other child.

The following factors will help the court to weigh up these two issues.

The fair and accurate determination of the truth

The issues it is necessary for the court to decide;
The quality of the evidence already available, including whether there is enough evidence to make the findings without the child being cross examined;
Whether there is anything useful to be gained by oral evidence in circumstances where the child has not made concrete allegations;
The quality of any ABE interview and the nature of the challenge; the court will not be helped by generalised accusations of lying or a fishing expedition. Focused questions putting forward an alternative explanation for certain events may help the court to do justice;
Age and maturity of the child and the length of time since the events.

Risk of harm to the child

Age and maturity of the child and the length of time since the events;
The child’s wishes and feelings about giving evidence. An unwilling child should rarely if ever be obliged to give evidence and, where there are parallel criminal proceedings, the child having to give evidence twice may increase the risk of harm;
The level of support the child has and the views of the Guardian and those with parental responsibility;
The fact that the family court has to give less weight to the evidence of a child who is not called may be damaging to the child;
The court is entitled to have regard to the general understanding of the harm that giving evidence may do to a child as well as features peculiar to the child and case under consideration. The risk, and therefore weight, will vary from case to case.

The Family Justice Council issued guidance on children giving evidence in 2012.

For an interesting case where Judges in Court of Appeal disagreed with each other about how the Re W principles had been applied, see S (Children) [2016] EWCA Civ 83 (09 February 2016)

In the case of R (Children) [2015] EWCA Civ 167 a 14 year old was successful in her appeal against the court refusing to let her give evidence in support of her father, saying he had not abused her. Briggs LJ commented at para 36:

To my mind it is the absence of any real recognition of the basic importance of the cross-examination of GR to a fair trial of the serious issues in this case, in the judge’s judgment or even in the respondents’ submissions on this appeal, that makes it necessary that the appeal should be allowed. I would regard the welfare implications of the choice whether to permit her to give oral evidence and to be cross-examined as being evenly balanced. The risk of harm which the process may cause to this bright and articulate fourteen year old does not seem to me to be more substantial than the risk of long-term harm at being denied the opportunity to have her evidence properly weighed in the determination by a court of matters of the utmost importance to her.

I want to tell my story to the press

In 2003 Munby j (as he then was) heard the case of Angela Roddy. She was 16 years old and she wanted to tell her story to the press about becoming pregnant at 13 and then having her baby taken into care. She was allowed to be interviewed but the identities of her baby (Y) and Y’s father (X) would remain confidential.

Munby J commented at para 56 of the judgment:

56.The courts must face reality. We must, as Lord Scarman said, be sensitive to human development and social change. Angela may not yet be quite 17 years old but she is a young woman with a mind of her own and, as her solicitor B has said, a mature and articulate young person. We no longer treat our 17-year-old daughters as our Victorian ancestors did, and if we try to do so it is at our — and their — peril. Angela, in my judgment, is of an age, and has sufficient understanding and maturity, to decide for herself whether that which is private, personal and intimate should remain private or whether it should be shared with the whole world. She is what Ward LJ described in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at p 30 as a “competent teenager taking [her] story to the press”. She is, to use the language of Woolf J (as he then was) in Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581 at p 596, “capable of making a reasonable assessment of the advantages and disadvantages” of what is proposed.

57.In my judgment (and I wish to emphasise this) it is the responsibility — it is the duty — of the court not merely to recognise but, as Nolan LJ said, to defend what, if I may respectfully say so, he correctly described as the right of the child who has sufficient understanding to make an informed decision, to make his or her own choice. This is not mere pragmatism, although as Nolan LJ pointed out, any other approach is likely to be both futile and counter-productive. It is also, as he said, a matter of principle. For, as Balcombe LJ recognised, the court must recognise the child’s integrity as a human being. And we do not recognise Angela’s dignity and integrity as a human being — we do not respect her rights under Articles 8 and 10 — unless we acknowledge that it is for her to make her own choice, and not for her parents or a judge or any other public authority to seek to make the choice on her behalf.

Reform Proposals

In July 2014 Simon Hughes announced at the Voice of the Child Conference the government’s proposals to permit all children over the age of 10 an opportunity to speak directly to the Judge. He said:

Children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. At the moment, it is still too often that their views are not heard. Or that the law is interpreted to mean that others can make a assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.

I therefore want to announce that it is the intention of the Ministry of Justice, and therefore the government, that we move as soon as is practical to apply in all our family justice proceedings in England and Wales where children and young people are concerned the policy that it will be the normal practice, the norm, that, from the age of 10, children and young people involved in public or private law family justice proceedings before the courts will have access to the judge, in an appropriate way which reflects their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.

Children and young people of 10 and over will therefore be given the chance to make clear their views in person or if preferred in another way. We will also work with the mediation sector to arrive at a position where children and young people of 10 years old and over have appropriate access to mediators too in cases which affect them.

The Minister also agreed with the following:

Children and young people should be given the opportunity to meet and communicate with the professionals involved with their case including workers from the Children and Family Court Advisory and Support Service ( CAFCASS), social workers, the judges and legal representatives; every child of sufficient age and ability should have the opportunity of meeting with the judge overseeing their case; every child should have the opportunity through Cafcass of submitting their views directly to the judge in writing; all children should be able to communicate their wishes and feelings to the judge; children and young people should be kept informed about the court proceedings in an age appropriate manner, kept informed of the stage their case has reached, and contacted prior to the first hearing, and have the opportunity of giving feedback through email, text, telephone or written form.

EDIT However, as of the time of writing this edit (Nov 2015) nothing further has been heard of these reforms and it is likely they have been kicked into the long grass.

FURTHER EDIT in 2018 it was confirmed that there had been no movement on these reform proposals and it is likely they will be shelved.

A 1 in 5 failure rate is not cause for celebration.

Cafcass care application study 2014

Cafcass recently published some research that they claimed showed:

that five years on from the tragic Baby Peter Connelly case local authority social workers are making timely and well prepared care applications for children at risk.

The final sample population comprised: 304 Guardians; 391 care applications; and 684 children. The guardians were asked a number of questions:

Whether the timing of the care application was appropriate, premature or late;
Whether there was any other course of action which, in the view of the Guardian, the local authority should have taken before issuing proceedings;
Whether the local authority met the requirements placed on them by the revised PLO; and
Whether new or updated assessments had been commissioned prior to the making of the application and, if so, whether the assessments were in the child’s best interests.

The key findings of the research were:

Guardians believed there was no other course of action [than making an application] available to local authorities in 84% of cases.
In 84% of cases Guardians thought that the local authority had met or partially met the requirements of the revised Public Law Outline (PLO); and in 32% of the cases where Guardians indicated that the local authority had not met the requirements they considered this was appropriate.
Neglect remains the principal category of concern for children who were, or had been, subject of a child protection plan; and was identified by Guardians as being the principal trigger for care applications where the child was not subject of a plan.
Guardians considered that the timing of the application was appropriate in 54% of cases.

This was reported by Community Care as very positive:

“It is fantastic news that Guardians consider that, in general, local authorities are bringing the right cases to court, in a timely way and with the cases being well prepared,” Cafcass chief Anthony Douglas said.

Is ‘fantastic’ really the mot juste here?

Failure to consider other options

The most common alternative to care proceedings suggested was further assessment but it is clear that there was a wide range of options the guardians felt had not been explored when they should have been.

Table 3 Category of Guardians’ views on whether an alternative course of action should have been taken

Further assessment 20
Family group conference 18
Temporary kinship placement 12
Child protection plan 11
Referral to other services 11
Section 20 accommodation 6
Parenting education programme 5
Respite care 2

Failure to meet the requirements of the PLO

The 84% of cases where the PLO requirements were met or ‘partially met’ masks a very worrying percentage of those cases where the LA had ‘entirely met’ the requirements of the PLO – in only 43% of cases.

The guardians considered failure to meet the requirements of the PLO appropriate in only 1/3rd of their cases.

No letter before action

A letter before proceedings was sent in only 63% of cases. Where a letter was not sent the guardian’s thought this was in the child’s best interests in only 45% of cases. This is an important document which is meant to ‘enable the parents to obtain legal assistance and advice, prior to a meeting with the local authority, the intention of which is either to deflect proceedings or, at least, to narrow and focus the issues of concern’.

Of course, in some situations, such as emergency there won’t be time to send such a letter. However, given that parents often complain they do not understand why the LA is making an application for care proceedings, this seems a significant and unfortunate failure.

It is not clear from the report what percentage of the 37% of cases where no letter was sent were ’emergencies’.

Timing of the application

A significant proportion of applications – 46% – were not made at the right time. 3% the guardians were unsure about, 5% were felt ‘premature’ and 39% were ‘late’. The report comments:

Cases where children were accommodated for extended periods also featured, either under s20 or with unregulated carers, as did cases where the local authority was seen to have delayed between holding legal planning meetings or other pre-proceedings meetings, despite parental behaviours not having changed. In some cases the Guardian simply identified a lack of urgency in bringing the case to court.

A cause for celebration?

The report reveals:

approximately 1 in 5 cases where the guardians thought the LA had failed to fully consider alternatives to making the application for a care order;
the majority of all applications (57%) were not fully PLO compliant and this was considered inappropriate in 2/3rds of the non compliant cases;
a significant proportion of parents didn’t get a letter before action (37%) and in the majority of these cases the guardians didn’t think this was in the child’s best interests; and
a significant proportion of the applications (46%) were not made at the right time and 39% were made too late.

Community Care are silent as to what exactly was going wrong in these cases, quoting instead Annie Hudson, the chief executive of The College of Social Work.

“These survey results are encouraging. They testify to the expertise and commitment of local authority social workers and guardians to making sure that children’s needs are at the heart of the complex and necessarily finely balanced family justice system decision making process.”

The use of the words ‘fantastic’ and ‘encouraging’ in response to this report are odd. It seems an attempt to put a weirdly positive spin on some not particularly encouraging statistics. The case law couldn’t be clearer. Care plans for adoption must be subject to strict scrutiny and holistic evaluation of all realistic options. How is this requirement met if the guardian thinks there is a hole in the assessment process? If a kinship placement was available? If the parents should have been referred to other services?

We don’t know what kind of care plans these cases involved. We don’t know the outcomes of the proceedings – did the children go home? Kinship care? Adoption? What was the impact on the children and families if they were the nearly 1 in 5 cases where the guardians thought the care proceedings were initiated without proper consideration of the other options? What’s the impact on the children of being part of the 39% of cases where applications were made ‘too late’ ?

Without answers to these questions, maybe the commentators should row back a little from words such as ‘fantastic’ and ‘encouraging’.

There is a need to consider more fully the impact of judgments such as that in Surrey CC v AB and others in 2014 where there was considerable criticism of the ‘systemic failure’ of the LA and the very damaging impact of delay (para 72) and not keeping an open mind about placement (para 74).

This case was decided in March 2014. So time enough for lessons to be learned?

Are Bonuses paid to Social Workers?

If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

The issue of ‘adoption targets’ and bonuses paid to social workers has for some years now been a feature of the intense feelings of distrust and dislike many feel for professionals in this sector.

We have discussed the issue of ‘adoption targets’ in another post and how it seems that targets set up to speed up finding homes for children in care have been interpreted as pushing social workers to focus on younger, more ‘adoptable’ children in order to improve how they hit these targets. We have argued that the statistics don’t seem to support this but that there is a lack of transparency around this issue which doesn’t aid understanding.

And what does ‘performance’ mean?

Sarah Phillimore writes:

It was always my understanding that social workers were paid a salary – nothing more, nothing less – and that talk of them getting ‘bonuses’ was just more wild conspiracy theorising. There were proposals for a pilot scheme relating to bonus payments in 2009 with a view to rolling out the scheme nationally in 2013 but I don’t know what happened to that. This proposal met with sceptical comment from Community Care and as far as I am aware, it didn’t happen.

A FOI request in 2012 by Shelia Hersom produced this response about payment of bonuses to social workers. The response received did not seem to indicate that additional money was routinely paid to meet ‘targets’.

Social Workers do not receive any other specific non-monetary bonuses or
commissions. However, they may be entitled to a non-cash award, which
would be at the manager s discretion. Non-cash awards can potentially be
awarded to any KCC member of staff and are not exclusive to Social
Workers. Non-cash awards are awarded to individuals or teams as an
immediate recognition of extra effort or one-off successes. The value
of the non-cash award will not exceed £50 for an individual.

It seems that there are problems with both recruiting and retaining social workers and money additional to salary payments may be forthcoming to try and meet these problems:

Market premium payments are made to ensure the retention of experienced
caseholding Social Workers and to keep salary levels competitive within
the District DIAT, Children and Families and Disabled Children s teams in
addition to market premium payments made to Newly Qualified Social Workers
and Social Workers recruited from overseas.

One-off recruitment incentive payments are also made to Principal Social
Workers to encourage new staff to come to the Kent District and Disabled
Children s teams and to Newly Qualified Social Workers in order to offer
incentives similar to other local authorities.

The specific question was asked: ‘Question 9. Are there any targets for forced adoption? If yes please supply details?’ The answer was ‘no’.

Then I was sent a link to this article in the Maidstone and Medway News on September 20th 2014. A council spokesperson said:

Children’s social work is one of the hardest and most demanding roles in the public sector and we need to attract and retain people with talent and experience. This is a nationwide issue, which is why we have to offer attractive incentives to ensure we get the best people we can looking after Kent’s vulnerable children.

Eligibility criteria apply to these payments, which are available to social workers, senior practitioners and team managers in district teams and disabled children’s service, and are dependent on performance.

This makes me very uneasy. Paying social workers bonuses for ‘performance’ immediately raises the question – just what exactly is involved in ‘performing’ well to attract such a bonus?

I have made a Freedom of Information Request to Kent Council asking them to specify how many social workers qualified for this bonus in 2014, how much they were paid and what are the details of such a scheme.

I will update with the response I get. I agree with what Andrew Pack says:

What I would say, for the ultra-cautious people, is that I would agree that the lack of transparency on ‘payments and adoption targets’ is deeply unhelpful and creates a genuine reason for people to feel sceptical, uncomfortable and unhappy. The absence of clarity and transparency is itself very shabby. It may or may not have distorted how many times adoption was recommended in final social work evidence, it may or may not have had an impact on individual people’s cases. At this point, we don’t have the evidence to draw a proper conclusion and that in itself is wrong. It creates at best, a fishy odour, and as we well know, “Justice must not only be done, it must be seen to be done”

Update – Kent Responds Oct 2014

Dear Ms Phillimore

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to bonus payments to social workers. I am pleased to provide the response below:

I would be grateful for information to answer the following questions:

a) the total bonuses paid to social workers in 2014

The market premium/retention payments made to Social Workers for 2014 was £354,639.35

b) the total number of social workers who qualified for a bonus in 2014

262 Social Workers qualified for the market premium/retention payments

The information is for case-holding Social Workers (Social Worker – Newly Qualified, Social Worker and Senior Practitioner) within Specialist Children’s Services, receiving market premiums and recruitment premiums between 1st January and 25th September 2014.

c) disclosure of the scheme and performance targets that qualifies a social worker for a bonus

Additional Criteria for Market Premium Payment

Social Workers

carrying a full caseload

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

Senior Practitioners and Team Managers

performance level – achieving or above

not subject to any formal ER process

working in post for a minimum of 4 months during the qualifying period, i.e. 01 June-30 November or 01 December-31 May (e.g. staff on sick leave for more than 2 months in that period would not qualify)

not on probation

But how much further forward does this take me, given that I still don’t know how ‘performance’ is defined?

Reference to ‘performance’ probably means reference to KPIs (key performance indicators), such as number of cases held or closed, number of s47 investigations done. But the lack of transparency does mean that parents from Kent would not be unreasonable to at least feel anxious that decisions on individual cases were taken in order to get the bonus.

I will edit again if I can get any further information.

EDIT – I reply to Kent

On 15th October 2014 I sent the following email:

Thanks for your speedy response to my original query. Is it possible to ask you to expand upon your answer or do I need to raise a fresh request?

I would be grateful if you were able to refer me to any document or written policy that can explain what is meant by ‘performance level – achieving or above’.

This is because many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

EDIT – Kent reply on 23rd October 2014. Lots of words but no information.

Thank you for your request for information made under the Freedom of Information Act (FOIA) 2000, relating to performance levels. I am pleased to provide the response below:

The reference to ‘Performance level – achieving or above’ in the response to your previous FOI request (copy attached) relates to the process (‘Total Contribution’) which Kent County Council (KCC) uses to measure individual performance throughout each year (April to March). A total contribution assessment takes into account all the elements of an individual’s performance during a work year: their day to day behaviours, the quality and impact of their skills and aptitudes in their job. It applies to all KCC employees employed on the Kent Scheme terms and conditions, including those on the Kent Scheme working in schools.

Further information on the Total Contribution process is set out in the attached guidebook.

So no help there in defining ‘performance’. So I turn to the guidebook.

The guidebook sets out the Four Key Elements of Total Contribution.

Assessment Category	Elements
Objectives and Accountabilities	Delivery to Action Plan Effectiveness in job role on a day to day basis Targets Quality Standards Budget Control Customer Feedback Peer group/360 degree feedback
Values and behaviours	Continuously improving in terms of how the job is done Demonstrating enhanced delivery through behaviour Living our values and behaviours
Wider Contribution	Contributing to team, Project work outside the normal job Participation in KCC work activities not directly related to job role
Personal Development	Achievement of Development Plan Application of Development Attainment and use of required skills Qualifications attained

What is that word I can see in the top right hand box? The ominous word ‘targets’

So what ‘targets’ do they mean? Back to the guidebook. They don’t seem to be identified – or rather, the individual employee has responsiblity for selecting their own ‘targets’.

Check and adjust your targets throughout the year according to developments at work. Your targets are dynamic and should reflect what you achieve throughout the year so they need to change when changes occur.

Make sure you get at least one opportunity, mid year, to talk about progress against your targets with your manager. Ideally 1:1 meetings, or supervision sessions will also help you keep a tab on your progress.

Ensure that the development needs you identified are put in to action.

Cash benefits get further mention:

Cash awards are intended to be used throughout the year to reward specific actions. They can also be considered as part of rewarding the overall Total Contribution but managers need to ensure that there is no double counting of an individual’s contribution and remind themselves of any recognition given or payments made earlier in the year. They should not be used as an alternative to making the proper TCP assessment or to supplement the corporately agreed performance or general award.

So what do I learn from 40 pages of rather dense management speak? That ‘targets’ are important in order to measure whether or not employees are performing sufficiently well to be rewarded on top of their salaries. I learn that these ‘targets’ are dynamic and ‘need to change when changes occur’. But there is no clarity as to what possible areas or achievements these ‘targets’ relate.

While I am grateful for Kent’s speedy response to my queries, I can’t help but be disappointed by the nature of their reply. It’s little wonder the proponents of the forced adoption debate gain so much traction when a simple question gets a 40 page booklet in reply, that is full of lovely words but very little information.

Remember my earlier question? … many people appear to believe that social workers are financially rewarded for getting children adopted and if that isn’t the case it would be useful to be able to demonstrate that this isn’t what these bonuses are about.

My question is unanswered and I am left with a growing sense of irritation and frustation – this debate is important. The way the State intereferes in the lives of individuals has huge ramifications in so many areas. Due process matters. This is an unnecessarily opaque response to an important question. We are all entitled to as much clarity and honesty as possible about what is done in our name, with our taxes. If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

‘Targets’ defined in 2012 FOI response

The 2012 FOI request lead to the provision of this information regarding ‘targets’ that are used to monitor performance in Specialist Children’s Services and are reported at a District level on a monthly basis. Information relating to performance is available at Social Worker level from which the performance of individual Social Workers can be measured.

HOW MUCH ARE WE DEALING WITH ?	Target
Number of CAFs completed per 10,000 population under 18	58.9
Number of TAFs per 10,000 population under 18	67.7
Number of Referrals per 10,000 population under 18	533.1
NI 68 – Percentage of Referrals going on to Initial Assessment	65.0%
Number of Initial Assessments per 10,000 population under 18	415.4
Number of Core Assessments per 10,000 population under 18	170.6
Number of S47 Investigations per 10,000 population under 18	109.2
Percentage of S47 Investigations proceeding to Initial CP Conference	70.0%
Number of Initial CP Conferences per 10,000 population under 18	44.3
Number of CIN per 10,000 population under 18 (includes CP and LAC)	290.0
Numbers of Children with a CP Plan per 10,000 population under 18	40.0
Children looked after per 10,000 population aged under 18	47
Number of Looked After Children with a CP plan.	30
Numbers of Unallocated Cases for over 28 days (Business)	100

HOW LONG IS IT TAKING US ?	Target
Percentage of TAFs held within one calendar month of CAF upload	70%
NI 59 – Percentage of IA’s for children’s social care carried out within 7 working days of referral	69.0%
Initial Assessments in progress outside of timescale	200
(NI 60) – Percentage of Core Assessments that were carried out within timescale	80.4%
Core Assessments in progress outside of timescale	100
NI 67 – Child protection cases which were reviewed within required timescales	97.9%
NI 66 – Looked after children cases which were reviewed within required timescales	94.6%

HOW WELL ARE WE DOING IT ?	Target
Percentage of Case File Audits judged adequate or better	85%
Percentage of open cases with Ethnicity recorded	95%
Percentage of Referrals where the Referrer is informed of the outcome	80%
Percentage of Children seen at Initial Assessment	90%
Percentage of Children seen at Core Assessment	90%
Percentage of Children seen at Section 47 enquiry	90%
Percentage of Children with a CP plan where all statutory visits are within timescale	90%
Percentage of Looked After Children where all statutory visits are within timescale	90%
Percentage of Looked After Children aged 5 to 16 with a Personal Education Plan (PEP)	95%
Participation at Looked After Children Reviews	95%
Children subject to a CP Plan not allocated to a Qualified Social Worker	0
Looked After Children not allocated to a Qualified Social Worker	5

ARE WE ACHIEVING GOOD OUTCOMES ?	Target
Percentage of TAFs closed where outcomes achieved or closed to single agency support	90%
Percentage of TAFs closed because the case has escalated to Children’s Social Services	7%
Percentage of referrals with a previous referral within 3 months	6%
Percentage of referrals with a previous referral within 12 months	23.0%
NI 65 – Percentage of children becoming the subject of a CP Plan for a second or subsequent time	13.7%
NI 64 – Child Protection Plans lasting 2 years or more at the point of de-registration	6.0%
Percentage of Current CP Plans lasting 18 months or more	7.0%
NI 62 – LAC Placement Stability: 3 or more moves in the last 12 months	10.1%
NI 63 – LAC Placement Stability: Same placement for last 2 years	67.5%
LAC Dental and Health assessments held within required timescale	85.0%
Percentage of Children Adopted	11%

ARE WE SUPPORTING OUR STAFF ?	Target
Percentage of caseholding posts unfilled (100% – QSW inc Agency Posts)	10%
Percentage of caseholding posts filled by agency staff (Agency Staff ÷ Establishment)	10%
Percentage of caseholding posts filled by Qualified Social Workers (QSW posts exc Agency ÷ Establishment)	90%
Average Caseloads of social workers in fieldwork teams	20

Complaints against a public body – a parent’s advice and perspective

We are grateful for the comments of one of our readers ‘C’ who has not had a good experience of social work intervention, nor found that his complaint was dealt with either quickly or competently. He eventually took his complaint to the Local Government Ombudsman and found their response unhelpful. What happens when you have reached the end of the complaints process but you still don’t think you have achieved resolution of your complaint?

For discussion of the various legal remedies against mistakes or poor performance of a public body, see this post.

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

One of the greatest inhibitors in terms of application for Judicial Review is that the decision must almost always be challenged within 90 days – otherwise the judge may rule you out of time.

Individual social workers or hospital professionals registered with Health and Care Professions Council can be investigated by them for malpractice. All members have a duty to follow a code of ethics. So it is worth pursuing things there.

With regard to Freedom Of Information requests, I would discuss the best way forward here, with the Information Commissioner’s Office. There are exemptions to your receiving personal information but these can be considered and overruled by the (ICO).

If names were altered and logged inaccurately, etc. then these are breaches of the Data Protection Act which the ICO are supposed to police. They are toothless and pettifogging… but if you persist and manage to drill your way through to the upper levels of management, you can get a more sympathetic ear as they are interested in any cases of flagrant data injustice which might end up in them getting stronger powers in data protection from the government. You can sometimes get access to Data Subject Access Request information that is exempted, if the data may be required for future legal proceedings.

Contact the ICO on 0303 123 1113 and open a case with them. Press them to investigate it. Copy everything to your MP. [The professionals] will not want to appear uncompliant in the eyes of the ICO as the ICO is able to hand out hefty fines to corporate bodies. Force them to acknowledge your issue.

Do your best to be clear and concise in your dealings with these people. Remember they are dealing with this stuff all day, every day… and have limited patience for your emotion. Even though of course your outrage is entirely justified, it may just become an extra burden for them – and thus hamper your progress.

Why do things go so wrong?

In terms of [descrbing professionals as] lying, cheating and betraying – I realise that it is more likely unconscious, systematised behaviour and so defining it as lying, cheating and betraying may be pejorative. It is inept in the sense that a broken food processer throws food all over the room. The result is a mess: the solution is to fix the processor. Or to throw it out and go back to chewing.

Isn’t simple human error still misfeasance, when those errors represent breaches in frameworks that they are supposed to comprehend and follow?

I see how chronic ineptness can be portrayed as simple human error, and is not necessarily ‘conscious’. Mind you, being in a stupor is no defence when driving – so it is difficult to appreciate why it should be admissible when administering the law..

And what are the consequences?

The experience of ‘C’ has been that the available remedies are either subject to strict timescales or depend on being able to prove bad faith on the part of professionals, which is difficult to do.

This is a steep track to negotiate with limited funds. It ain’t justice as anyone unaccustomed to bureaucratic process and unlimited time to play with other peoples lives and money, would recognise.

And the consequences are the destruction of any constructive professional relationship and a sense of despair for the parents left without a remedy.

I think bitterness at injustice and lack of closure makes one deaf to rational argument. It is somewhat remarkable that [some parents are] still exploring legal routes, and not investigating home bomb-making, or kidnapping strategies…

As for being a victim, the unfortunate truth of post-capitalism, is everywhere that you pay with your attention. In my complaint, I have helped justify their existence, improved their systems of control, and helped guarantee their salaries. There is no comfort in that.

My heart goes out to [families in a similar position] – and I fear for them. They seem distorted by unassuageable pain. Whatever the justice of their case, or the LA’s actions, the fruits are only bitterness and despair for everyone except those employed to purvey the misery, and uphold the myth of adversarial justice.

The Law – the Mental Capacity Act 2005

Key principles of the MCA

The Court of Protection

What does ‘lack of capacity’ mean?

An inability to make decisions

I am told I need an assessment of my capacity – what does this involve?

What follows from an assessment that you lack capacity

Appointment of a ‘litigation friend’

The Official Solicitor

Court of Protection rules

Can I still give evidence in my case if I am found to lack capacity?

I don’t agree I ‘lack capacity’ – what can I do?

Restrictions on freedom of movement under MCA

What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

What does ‘deprivation of liberty’ mean?

Further reading

Why do the courts need psychological reports?

The report of Professor Ireland – poor quality of expert reports?

How do the courts now approach the use of expert psychological reports?

Importance of the procedural rules on instructing experts.

Guidance from The Transparency Project

There is no such thing as a ‘perfect parent’

Who are parents and why is parenting important?

What do we mean by ‘good enough parenting’?

Components of good enough parenting

Things which can get in the way of good parenting.

Is there a universal definition of ‘good enough’ parenting?

Risk factors

Protective factors

Assessing parents’ capacity to change.

Further reading

I don’t agree with what my guardian is saying and I want my own solicitors

I want to talk directly to the Judge

Familly Justice Council Guidelines

What happens when meeting the Judge goes wrong?

I want to give evidence in court

The fair and accurate determination of the truth

Risk of harm to the child

I want to tell my story to the press

Reform Proposals

Further reading

Cafcass care application study 2014

Failure to consider other options

Failure to meet the requirements of the PLO

No letter before action

Timing of the application

A cause for celebration?

If there are no targets to take children into care, then say so. What’s so hard about that? And if you won’t say so, why not?

And what does ‘performance’ mean?

Update – Kent Responds Oct 2014

But how much further forward does this take me, given that I still don’t know how ‘performance’ is defined?

EDIT – I reply to Kent

EDIT – Kent reply on 23rd October 2014. Lots of words but no information.

The guidebook sets out the Four Key Elements of Total Contribution.

‘Targets’ defined in 2012 FOI response

Further reading

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

Why do things go so wrong?

And what are the consequences?