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Making eye to eye contact (post adoption contact applications, some practical queries)

 

I’ve previously written about the relatively new provisions of the Children and Families Act 2014 that allow a birth parent to apply for direct contact even years after the adoption order was made.

http://suesspiciousminds.com/2014/03/16/applying-for-contact-after-a-child-is-adopted/

 

I’m grateful to regular reader and commenter, Jerry Lonsdale, for posing me some questions that I didn’t know the answers to, and thus for making me go and find unexpected answers.

The provisions are set out in a new clause s51A of the Adoption and Children Act 2002

In order to make the application, a parent would need to obtain leave of the Court, and the Act sets out the things that the Court would need to consider.
S51 (5)In deciding whether to grant leave under subsection (4)(c), the court must consider— .
(a)any risk there might be of the proposed application disrupting the child’s life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act), .
(b)the applicant’s connection with the child, and .
(c)any representations made to the court by— .
(i)the child, or .
(ii)a person who has applied for the adoption order or in whose favour the adoption order is or has been made.
[It might have been helpful, given the wrangle that has previously taken place about whether leave to oppose adoption or leave to revoke a Placement order applications are applications to which the welfare paramountcy test applies for Parliament to have made that explicit. I think, though I would not put money on it, that when deciding the application for LEAVE, that the welfare of the child is a paramount consideration.]
We are probably getting the first of these applications made at present (and I’m aware that there is one such case in the High Court where the practical issues are becoming exposed)
In terms of practical issues, let’s look at them in turn – this has been a valuable exercise, because one element that looked very problematic when I first considered it has actually resolved on very close inspection. It might save someone else the detective legwork in the future.
1. How does the birth parent serve the adopters?

The birth parent won’t know the adopters address and nobody is going to tell them it. The Court MIGHT know it, if they were the Court who dealt with the adoption and they still have the file; assuming that the adopters have not moved since the adoption order was made. The other option might be for the Court to ask the Local Authority to serve the adopters – assuming that the Local Authority are willing to get involved and that the Local Authority have an address for the adopters. (Adopters aren’t obliged to keep a Local Authority informed of any change of address – they MIGHT, if they have a good relationship with their support worker or if they are receiving financial support)

You can’t go ahead with the application if the adopters aren’t served, because (a) that’s going to result in article 6 breach to the adopters and (b) The Court is obliged to consider the views of the adopters.
So not having a solid practical solution to that aspect is somewhat troubling.

If the adopters happen to have moved overseas since the adoption order was made, it is not at all clear to me that the provision would have any force at all.
2. Who is a party to the application for leave?
Well, the birth parent making the application is a party. The adopters would be a party, as respondents. And erm, that’s it.

The Local Authority are not a party to proceedings. They no longer hold any order in relation to the child, since the making of the Adoption Order ends their Care Order.

These applications are NOT specified proceedings for the purposes of section 41 (6) of the Children Act 1989 , and are thus not proceedings for which a Guardian is automatically appointed.
As we already established that applications under s51A don’t attract public funding (unless the applicant or respondent can convince the Legal Aid agency to give them ‘exceptional’ funding under s10 LASPO, which is as likely as Alex Salmond inviting David Cameron to rule Scotland by his side at the end of the month – perhaps wearing a Darth Vader costume) both the birth parent and the adopter will probably be litigants in person.

As such, neither of them will really fully grasp the test and the nuances and if we ever get any case law on it, won’t know it. Not their fault, it doesn’t mean that they aren’t bright or articulate, just that this whole thing is pretty impenetrable AND brand-new.

Probably neither of them will have a full set of the previous adoption papers and care proceedings – the adopters certainly won’t. The parents might, if they kept hold of them for a few years and ever had a complete set anyway.

So a Judge will be faced with two litigants in person (and a set of litigants who almost certainly won’t want to come into contact with each other), who don’t have the past papers and won’t know the law and process.
2(a) Options to get other people involved

The Court could invite the Local Authority to become a party. That would be an invitation – the LA can’t be forced to become a party. One would hope that the LA take up that invitation, but they might not. They might consider that the adoption was years ago and that everyone who knew the case is long gone, they might think that the adopters are from another part of the country miles away and that it would be better for THAT LA to be involved rather than them, the birth parents and adopters might not be living in that particular Local Authority by the time the application gets made, they might just be short-staffed and poorly funded or bloody minded.

If the Court invites the LA and they decline, I had initially thought that this was the end of it. It is not!

Rule 14.3 Family Procedure Rules 2010 (the section relating to any application under the Adoption and Children Act 2002, which this would be)

14 (3) The court may at any time direct that—
(a) any other person or body be made a respondent to proceedings; or
(b) a party be removed.

The Court therefore has the power to MAKE a Local Authority be a Respondent to such an application. And once they are a Respondent, the Court can make them file documents, skeletons, statements etc.

The application isn’t specified proceedings, but the Court can still appoint a Guardian, by appointing the child as a party under rule 14.2 of the Family Procedure Rules 2010 and then appointing a Guardian to represent the child.
(2) The court may at any time direct that a child, who is not already a respondent to proceedings,
be made a respondent to proceedings where—
(a) the child—
(i) wishes to make an application; or
(ii) has evidence to give to the court or a legal submission to make which has not been
given or made by any other party; or
(b) there are other special circumstances.

[You can’t do it under Rule 16.4, because that expressly excludes doing so in an application under the Adoption and Children Act 2002, so rule 14.2 is the solution]
You can of course still get the difficult situation where Local Authority A dealt with the care proceedings, the child is placed with adopters in Local Authority area B, and by the time of the adoption the birth parents are living in Local Authority area C. Which Local Authority does the Court make a Respondent? Which of the three areas provides a Guardian?

 

3. How does the Court make the enquiries about the risk of the application being disruptive / the benefits of it?

 

Well, it becomes substantially easier if the LA and Guardian are drawn into the mix. The Court can direct that those agencies carry out an assessment and provide a report.

If they are not made parties, the obvious solution that occurred to me was that they be directed prepare a section 7 report, but there is no power to do that on a s51A application for contact.

Section 7 of the Children Act 1989 (the power for the Court to direct that the Local Authority or CAFCASS provide a report to the Court advising on contact) applies to applications made under the Children Act 1989, and s51A applications aren’t.
4. What is the test going to be ?
Historically, the senior Courts have always made heavy weather of “leave” applications – they have always wanted to add gloss to the statute – often so much gloss that the test that one ends up with bears little relationship to the statute itself. You only have to look at the variety of judicial shorthand guidance on “leave to be joined as a party” in care proceedings – we have had everything from ‘arguable case’ to ‘strong arguable case’ to ‘strong prospect of success’ to ‘not vexatious, frivolous or fanciful’ and we now have the Court of Appeal guidance that one has to frankly forget all of the previous shorthand and guidance and just go back to what it says in the statute as factors to be considered and add in the human rights principles of right to family life, proportionality and right to fair trial.

But we do have slightly different tests for “leave to be joined as a party”  (which is the “it’s the Act, stupid” test), “leave to revoke a placement order” (which is still officially Warwickshire, though everyone really thinks it ought to be identical to B-S) and “leave to oppose adoption” (which is B-S)

Which of those tests, if any, is going to apply to these applications?

Does the historical law on making a contact order post adoption still apply? (in essence don’t make a contact order if the adopters are agreeing to the contact and don’t make a contact order in the teeth of opposition from the adopters – leaving only a tiny patch of possible contact orders in wholly exceptional cases)

Is there a presumption that contact is good? Or a presumption that the status quo should prevail? Are either rebuttable presumptions? Or is it a completely blank sheet of paper?

Who the heck knows?

 

Working with foreign authorities – the DFE guidance

 

I know, I’m as beleaguered as the rest of you with guidance and strictures and practice directions and “you must do this”  and “It is outrageous that nobody took account of the 1412 French bylaws about how to proceed in a case where a parent has ever been within five hundred feet of a member of royalty, what were you all thinking?”

 

But this piece of guidance from the DFE is actually short and is trying to be helpful, which makes a huge difference.  I used to deal with a case involving assessment of an overseas relative once every year to year and a half. Now it is a monthly occurance. That’s not to bang the UKIP drum, it is just a reflection of the different make-up of our society now.

 

http://www.familylaw.co.uk/system/redactor_assets/documents/1303/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf

 

It provides guidance for when a Local Authority is considering placing a child overseas or conducting an assessment of relatives overseas. It would be worth handing out to lawyers and social workers dealing with those cases. It offers very practical guidance, and holds out the offer of support from other Government agencies (so at the very least, writing to those agencies and quoting them the guidance may be of benefit.

 

It also has a helpful list of contacts, recognising that family lawyers aren’t specialists in international law (if we were, we’d be doing international law and having much much nicer holidays and cars)

 

There were a couple of things new to me – firstly that there are countries where a social worker’s qualification and licence would not be recognised and thus they CAN’T conduct the assessment themselves, and secondly that there are countries where the STATE needs to authorise a child being placed in their country. It would be helpful, if the DFE were minded to, to produce either a list of both, or where that information can be found.

 

I’m a sausage machine, a perfect sausage machine

 

Agatha Christie, the doyenne of ‘cosy’ crime novels and the creator of Hercule Poirot and Miss Marple, once said of herself that she was “A sausage machine, a perfect sausage machine”.  She was talking about how her publishers thought of her, which was that their only real thinking about her was whether she could produce another book and at the time of their choosing.

I spent Friday afternoon with one of my favourite social workers and when we reached the point of saturation on talking about the detail of the case and the task that we had to complete, she said something that has been kicking around in my brain for a while.

What she said was “Once you get a case into Court, the whole thing, every single conversation you have becomes about WHEN”

She’s right. When I started this job, the cases felt like they were about real children and real parents and real situations. When you went to Court, that was predominantly what you talked about – what was happening in the real world for this family and the PROCESS was secondary.  Over time, the discussion about process became longer and the discussion about the family became shorter. The orders got longer and more labyrinthine, and less easy for a normal human being to follow. The balance has got more and more out of whack, to the point where now, the entire time at Court can be spent talking about the Court’s process, and in particular just getting the clockwork mechanism in place to make the case conclude by week 26.  Sometimes I look over at the parents, who are in Court frightened or confused or worried and I can see that none of this sounds or feels as though it is about them at all.

Everyone in a Court case is just a sausage machine, and their job is to produce the goods on time. If you are someone who has a job that involves a lot of Court proceedings, your entire working week can be spent being a sausage machine – get this done, get that done, have you done that yet? Produce this report, observe this contact, speak to this relative. Make sure you get it all done on time.  And if you are a lawyer, it can be easy to slide into the trap of just being like Agatha Christie’s publisher and that your only communication is to make sure that the goods are being produced on time.  Social workers are people, not sausage machines. And parents and children deserve more than a system that treats them that way.

Of course everyone has to have targets and deadlines, and I’m not suggesting that the cases that just drifted and delay got piled up on delay was a good thing or a golden era to be returned to. But the NHS has targets and deadlines, but it is not so obvious in their client care and bedside manner – you might have a long wait in A&E, but they don’t add insult to injury by relentlessly talking about the target and performance measures when they should be looking at your injury.

I am finding that over the last year, I have social workers say to me that in order to make a rehabilitation work, or a placement with a relative work, or to get the right decision about a child more time is needed to do it properly, and I have to keep saying “Well, we can ask, but the Court is supposed to say no”.   That doesn’t feel very nice.

Again, in the past the phrase “constructive delay” was used as a blanket excuse to justify any delay, any extra assessment, any attempt to leave no stone left unturned, but in throwing it away as a concept, we may have lost something really important. Let’s not forget that what we are doing in care proceedings is making decisions about whether a child can be safe with their parents. That’s a process that involves to an extent an educated or informed prediction about the future – something that isn’t easy to do. If you have less information than you want to make you feel confident about your prediction, don’t you end up with people playing safe?

If the social worker conducting an assessment really feels that more time and more work would make that possible and can explain why, then surely that IS constructive delay and there should be a place for it?

 

I don’t mean that adjournments should be given out like sweets, and that delay isn’t a bad thing. If there’s something that ought to have been done and nobody got round to it yet, then asking for more time to get it done is bound to incur some judicial displeasure and rightly so. What I’m talking about is where the social worker has done the work, asked the questions and reached a point where the only right answer is that “we just need to give this some more time to get the right answer”

 

(That’s something that one of the midwives of 26 weeks, Ryder LJ was talking about in the Re K case recently. Not in that context, but in the sense that just because there’s a time pressure doesn’t mean that a Judge should not sometimes step back and say, “It is better to wait and get this right, rather than do it now and get it wrong”.   In the wise words of Billy the Kid  “Speed’s fine, partner, but accuracy’s final”)

 

A pivotal moment in any Agatha Christie novel is the scene where the detective gathers all the suspects together and reveals the solution to the case. That has quite a bit in common with a social worker’s final evidence. Everyone is waiting anxiously to see it, nobody is completely sure what it is going to say, we know it is going to be important. At some point, someone will say loudly that this is all complete rubbish. And like Poirot’s solutions, there might well be a very difficult Court hearing after it is revealed – it isn’t really the final word on the subject.

Well, Poirot gives his solution when he knows that he has got it right, when all the pieces are in place and he can be sure that what he is saying is right. If he was instead told that by a fixed time in every murder case, he had to gather everyone in the drawing room and tell the assembled suspects who did it, then he would get some of them wrong. Sometimes not all of the suspects have even appeared  (in care proceedings, relatives do come forward late on). Sometimes not all of the clues have come to light. Sometimes he might not even have a clue.

 

If Poirot says that he needs to do some further detective work to reach the right conclusion, he should be given the time he needs, and not be made to feel like he is a disgrace for even suggesting it.

The Ashya King wardship judgment

We have all been eagerly awaiting this, and it is now out.

 

This is the judgment given by Mr Justice Baker in the wardship proceedings, setting out the reasons why on Friday of last week a solution was reached that Ashya would be able to receive proton-beam therapy treatment in Prague. Ashya is no longer a ward of Court, and all decisions about him will be made by his parents.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2964.html

 

It is not one of those rambling long judgment that would be incomprehensible to non lawyers – it runs about four pages and most of it is in plain English. I don’t often suggest that normal human beings read a judgment, but in this case, I would. It is a very good piece of work by Baker J  (not surprisingly, he writes a good judgment)

 

[It doesn't answer my law geek question of whether the parents received free legal representation - I hope that they did. They were certainly represented, and the firm they used does do legal aid work. And there's no debate at the end about costs, so I hope they got legal aid. One suspects that even the Legal Aid Agency had enough common sense to not want to be seen to be saying that the family should spend their treatment fund on lawyers]

The judgment focuses rather more on treatment and the future than a forensic delve into the past and what has gone wrong (understandably, because a solution had been arrived at that would please everyone, and also because if there is to be any suing going on about what happened it is likely to focus on the issue of the European arrest warrant and the arrest and detention of the parents, which is outside of the scope of the family Court)

 

What the Judge does say about the application for wardship itself is this :-

 

32 When Mr and Mrs King took Ashya from hospital on 28th August, the medical staff were understandably very concerned that the boy would suffer significant harm by being removed from the specialist care they were providing. When the local authority was informed about what had happened, and that it was believed that the parents had left the country, the social workers understandably concluded that there were reasonable grounds for believing that Ashya was at risk of suffering significant harm by being driven across Europe without medical assistance at a time when he urgently required post-operative therapy. I therefore conclude that the local authority acted entirely correctly in applying to the High Court, and further that Judge Arthur was right, on the evidence before him, to make Ashya a ward of court. My comments are confined to the matters within the family jurisdiction. I make no comment as to whether or not it was appropriate to seek a European Arrest Warrant. I merely observe that one consequence of this course was that Ashya was separated from his parents and left alone for several days in the Spanish hospital. As I observed at the hearing on 2nd September, whatever the rights and wrongs of his parents’ actions, it was not in Ashya’s best interests to be separated from them in such circumstances.

  1. The steps taken by the local authority and Judge Arthur on 29th August were entirely justified on the evidence then available. As at that date, there were reasonable grounds for believing that Ashya was at risk of suffering significant harm. A week later, the picture had changed and the court was faced with a completely different decision.

 

 

I’m sure that there will be many who think otherwise, but this judgment is very helpful in setting out the facts of the case when there has been so much speculation.

 

I am pleased that Ashya is back with his parents and that he is receiving treatment, and whatever else we might feel about this case, I’m sure that all of us wish him and his parents all the very best for the future.

 

 

 

The Great British Blog Off

 

As you may know, Lucy Reed from http://www.pinktape.co.uk and I are both nominated for an award in the Jordans Family Law Award  (or what literally nobody in the legal world is calling “The Jordies”

 

You can vote for either of us, and voting ends on Midnight Monday.

 

Vote here  http://books.jordanpublishingsecure.co.uk/updates/vote.asp

 

You don’t have to be a lawyer to vote, you can be a real person too.

 

Now, I know that I was wrong to take Lucy’s post on Baked Alaska out of the fridge before it was ready, and I’ve apologised for that.

I can assure you that a vote for either myself or Lucy WILL ensure that we keep the pound, that Strictly Come Dancing will continue to be available on BBC, that all of the revenues Lucy and I get from North Sea Oil will remain in the blogging community and that neither Lucy nor I will have access to Trident missiles.

 

Did I mention that you could vote here   ?

http://books.jordanpublishingsecure.co.uk/updates/vote.asp

If you have been meaning to vote, then get round to it please. You don’t want Lucy or I to have access to Trident missiles, do you?

If you have already voted, then thank you. And also, if you fake your own death and get a new identity before Monday, you could vote again, so… y’know, don’t ignore that route.

Court deciding of its own motion to remove a child into care

 

I’ve been writing more or less since I started this blog about my concerns regarding the power in section 37 of the Children Act 1989 for a Court to place a child in foster care of their own motion. (for non-lawyers, ‘of the Court’s own motion’ means that the Judge decides to do this himself or herself, rather than there being a formal application by the Local Authority.   There has been a lot of press attention on one young boy over the last week, but the Court of Appeal’s decision in Re K may have a considerable impact on a number of families. There’s a story here, if the Press care to tell it.

 

That power exists, that is beyond doubt. It is set out in section 37 of the Children Act 1989 that where a Court is dealing with a private law case (i.e two parents arguing about where a child should live or how much time the child should spend with either) they can direct that the Local Authority (social services) carry out an investigation and the Court can make an Interim Care Order for up to 8 weeks whilst waiting for that report.

 

Why does that matter?

 

Well, an Interim Care Order allows the child to be taken away from a parent and placed with another parent, or a relative or in care.

 

And why does it matter that the Court do it of its own motion rather than with the Local Authority applying?

 

Well, here are the protections you get if you are a parent, when the Local Authority apply for an Interim Care Order :-

 

(a) You get a period of notice – three days

(b) You get to see the Local Authority evidence – why should there be an Interim Care Order,

(c) Sometimes more importantly,what do they plan to do with it – the interim care plan

(d) You get FREE legal advice and representation

(e) The Court has to find that there are reasonable grounds to believe that the child has been harmed or would be likely to be harmed (the threshold criteria) and the reasons for this have to be set out in a 2 page document, that the parent can challenged

(f) There will be an independent Guardian, appointed to advise the Court on what is best for the child. They may challenge the social work view and have an alternative plan to put forward

(g) Finally and most importantly, the person who is asking for the application is NOT THE SAME PERSON as the one deciding whether to make the order.

 

With an Interim Care Order made under section 37 of the Children Act, these things do not necessarily happen. It might be that the parents have lawyers, but these days they probably don’t.  There might be a Guardian (but as we’re about to see, the wrong type of Guardian can be worse than not having one at all)

 

Re K (Children) 2014

 

This case, just decided in the Court of Appeal, doesn’t set out all of these concerns, but it is dealing with a case in which the making of Interim Care Orders under section 37 of the Act went badly wrong.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

 

I will put the killer line in first, because I don’t want this point to get lost

 

33. The judge had in her mind from the beginning of the hearing the jurisdiction of the family court to make an interim care order under section 38(1) CA 1989 where a section 37 report has been directed. The procedural protections of notice and an opportunity to be heard apply to a jurisdiction that is available to the court of its own motion just as much as they do to a jurisdiction invoked on a party’s application.

 

That is a big deal – the Court of Appeal have never said that before. Within the last couple of years, the Court of Appeal take on ICOs made under s37 has included:-

 

If the Local Authority report says no need for a further order, the Court can just tell them to write another one, and another one, and keep making Interim Care Orders until the Local Authority writes a report that the Judge agrees with

http://suesspiciousminds.com/2012/11/30/it-is-lawful-to-make-icos-under-repeated-s37-i-say-it-is-lawful-to-make-icos/

 

And that it was okay for the Local Authority to turn up at Court, pop in to see the Judge on their own and suggest this route and for the Judge to make an Interim Care Order under s37 even though the mother and her lawyer were AT Court and knew nothing about it

http://suesspiciousminds.com/2013/03/14/ex-parte-removal-by-the-back-door/

 

The Court of Appeal in this case also added that the law on removal is the same under s37 as when the Local Authority apply for it (again, the Court of Appeal have been weak on this in recent years)

 

35. The tests to be applied where a removal into public care is being considered by this route are: a) whether the court ‘is satisfied that there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2)’ (the interim threshold as set out in section 38(2) CA 1989); b) whether the court is satisfied that the child’s safety demands immediate separation (see the authorities reviewed in Re L-A (Care: Chronic neglect) [2010] 1 FLR 80 CA); c) whether the court is satisfied that removal is in the best interests of the child (the welfare analysis required by sections 1 and 1(3) CA 1989; and d) having regard to a comparative welfare analysis of the options, whether the court is satisfied that removal is a proportionate interference with the child’s and other relevant persons’ article 8 ECHR rights

36.The interim threshold was satisfied by the determination made by the Recorder in his May judgment but that was not enough in itself to demonstrate an application of the other tests. The safety question described by Thorpe LJ in Re L-A was neither asked nor answered. It could not be because of the poor quality of the evidence before the court. In the absence of quality evidence on the point, not only was the safety issue not identified with sufficient clarity or particularity, but of necessity there could be no analysis of the evidence relating to it in order to conclude that a removal was justified.
 

37. Re L-A is the domestic legal test for the justification of removal that takes note of the Strasbourg jurisprudence i.e. the interference of the state in the article 8 rights of those involved in circumstances where there is an issue of safety. In order to identify the nature and extent of an alleged risk to the physical or emotional (psychological) safety of a child the court needs evidence relating to the prima facie facts. As has been explained by the President in Re G (Interim Care Order) [2011] 2 FLR 955, it is also necessary for the court to undertake a broad proportionality evaluation of the comparative welfare analysis of the options for each of the boys on the facts of the case to cross check whether a ‘more proportionate’ option than separation is available. That did not happen, but in fairness it could not happen, because those options were not identified and analysed in the evidence. The absence of this reasoning is fatal to the decision made in respect of A in this case.

 

So, yes, I think this is long, long overdue. If I were for a parent in private law proceedings and got a sniff of the Judge contemplating the atom-bomb answer of “If you two can’t sort it out, maybe the child should be put in care” you are going to want this authority to hand, and you are going to want to argue for three days notice.

 

Back to Re K

 

There were two children, one nearly 15 and one aged 12. The private law proceedings, as so often happens, had been emotionally fraught and acriminious. It was one of those cases where the children were saying that they didn’t want to see their father and there were doubts about whether that was a genuine belief or one instilled in them by their mother. The original Judge heard what was no doubt a very difficult case and decided to separate the children, one going to father, one going into care under an Interim Care Order made under s37 of the Act. The children had never been separated before.

 

No doubt because there was no agreement about how the removal and separation was to occur, a recovery order had to be made in accordance with section 34 of the Family Law Act 1986 and the removal happened late at night with the police in attendance. The circumstances were distressing to all involved, including at least one professional. B was so distressed that he evacuated his bladder and had to change his clothes. The removal was described by mother’s representatives as ‘violent’.

 

[This was not the first time, and sadly probably will not be the last time, that removal of children from a parent following a private law hearing has gone badly wrong]

The Court of Appeal upheld the appeal and decided that the Judge’s decision had been wrong. They were sympathetic as to how this had happened – the pressure of time to make a decision had caused everyone to rush into a decision without really taking everything into account that needed to be dealt with. It is a salutary lesson and the Court of Appeal treat it as such, that sometimes Judges need to step back from the time limits and pressures and say “This needs more time to consider”

The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone. If there is any lesson to be learned by everyone involved, it is that a judge has to give him or herself time regardless of what anyone else wants that judge to do. I would suggest that the decision that was made in this case would not have been made in the way that it was had time been taken to reflect on the history, the implications for the boys, the options available and the patent need for further and better evidence.
 

This is one of those family cases that a family court judge instinctively knows will cause harm to the children involved whatever decision is made. With that in mind, the analysis that has to be undertaken must bring to bear an acute focus on the balance of welfare factors given the facts of the case. The children are highly enmeshed in their parents’ conflict and the order that Judge Marshall came to have to re-consider was expressly made with the words in mind of Wilson J. (as he then was) in Re M (Contact: Welfare Test) [1995] 1 FLR 274:
 

“Whether the fundamental emotional need of every child to have an enduring relationship with both his parents (s 1(3)(b) of the CA 1989) is outweighed by the depth of harm, which, in the light inter alia of his wishes and feelings (s 1(3)(a)), this child would be at risk of suffering (s 1(3)(e)) by virtue of a contact order.”
An enduring solution to the problem that exists in a case like this depends upon a comprehensive welfare analysis derived out of specialist case management which identifies the problem with clarity, a well informed judicial strategy based on good practice and good quality evidence and a measure of good fortune. The building blocks for such a solution are rarely available in the context of an urgent safety enquiry i.e. in the heat of conflict and, as will appear from the circumstances of this case, it is not a dereliction of duty to stand back and take time to consider whether the building blocks exist. In this case, they did not.

 

As hinted earlier, the situation was compounded because being a private law case, the CAFCASS officer involved was very familiar with private law cases but had little or no experience in public law cases (i.e children being taken into care).  They also had an expert who proposed a strategy, but had no suggestions as to what to try when that strategy went wrong. There had been no Plan B

 

It might have been thought that the solution to the problem that had occurred would have been within the skill and expertise of the guardian and the expert who had recommended the strategy to date: sadly, it was not. As I have described, the expert had written to the court and the parties some time before the summer placement had broken down to say that the circumstances were beyond anything with which his clinical guidance could assist. That was surprising but in fairness there was also the issue of trust that had arisen because of the dual function that the expert had been expected to perform. The result was that the court lost the expert that it had previously decided was necessary. To add to that unfortunate circumstance, the guardian conceded during questions put by this court that she had no public law experience and that the good practice, research based options and/or evidential materials which should be the meat and drink of any public law Cafcass practitioner were not part of her skill and expertise.
 

The consequence has been, as she informed this court, that she has asked the family court for her functions to be transferred to another more experienced public law guardian i.e., as I understand it, an application for the termination of her appointment and her substitution by another guardian will be made before the next hearing. With the benefit of hindsight, the children’s guardian should have asked Cafcass management for assistance and that should of course have been disclosed to the court, leading to an application to the court to add another guardian (which is possible under the rules) or substitute guardians for the hearing before Judge Marshall.
 

It is not at all clear how much of this the judge knew. Some of it she could not have known because it was revealed to this court when it asked questions which had the benefit of hindsight. In any event, it would have needed a more detailed and nuanced hearing to establish that which is now known or identified as respects the problem to be solved.

 

The failure to properly plan was compounded because of course when the Judge makes their own decision to grant an Interim Care Order without an application, there is no interim care plan

 

38.It is almost an aside in this case to remark that even where the court has rightly decided to make an interim care order, it should as part of the process consider what in practice will happen to a child if the order is made i.e. the local authority’s proposals or their care plan if by then it exists. That is not the statutory obligation imposed on a family court by section 31(3A) CA 1989 because the requirements relating to a section 31A care plan do not by section 31A(5) apply to interim care orders. It is simply essential good practice to ascertain how the local authority that finds itself in this position is going to exercise its statutory responsibilities. That evidence is bound to be relevant to the welfare analysis and proportionality evaluation. I do not believe that in this case the divergence of professional view between the children’s guardian and the local authority social worker on the point was sufficiently investigated in evidence. It is perhaps sufficient to record that this court was told that if one includes respite, A has experienced three foster care placements already.
 

39. There were no formed proposals in this case because the local authority did not at the stage the order was made accept that an order should be made. This was not a case of a local authority being difficult. The only time available to the local authority to put together their proposals was the time during which the hearing was taking place where the local authority was not a party and its witness was not its decision maker. What was needed was more time for mature consideration. A plan, using that word in its non-technical sense, would of necessity have been skeletal and would probably not have extended beyond describing the means of recovery, the immediate placement into which A would go and the assessment or other planning process to decide what to do next. At the very least the court should have found time to give consideration to this question.

 

The fact that the Local Authority were present and were saying that there shouldn’t be an order ought to have given someone pause for thought. This course of action was always likely to go wrong.

 

The Court’s failure to consider the effect on the children of being separated from each other was also damning

 

I need not do more than state the obvious in a case of this nature. As young people who have experienced family courts, public care and relationship breakdown make very clear in, for example, the proceedings of the Young Peoples Board of the Family Justice Board, the separation of siblings can be one of the most traumatic elements of their experience, particularly where no provision is made for the sibling relationship to be maintained so as to safeguard their long term welfare into adulthood. Generalisations are dangerous, the intensity of sibling relationships can be very different and this court has not been taken to any of the research studies that consider this issue. However, it is sufficient to say that a sibling relationship is central to both the article 8 respect for family life which is engaged in a decision to make a public law order such as an interim care order and welfare, which by section 1 CA 1989 is the court’s paramount consideration when it ‘determines any question with respect to the upbringing of a child’. It will be a relevant factor in all or nearly all of the section 1(3) factors to which the court is required to have regard.
 

The absence of a value judgment soundly based in evidence about the effects on each of them of the separation of the boys was, in my judgment, almost as fundamental a flaw on the facts of this case as the failure to consider the safety issue and the proportionality of interference in relation to A. It went directly to the quality of the outcome of the court’s intervention for each of the boys.

 

The Judge met with the boys (in the proper way) but unfortunately her impression and observation of the boys leaked into her judgment  (Non-lawyers note, it is acceptable for a Judge to meet children for the purposes of explaining  who she is and what the Judge’s role is, and possibly for very very general chat, but not for the purpose of gaining evidence. We wait to see whether the Ministry of Justices proposal that children should routinely be able to meet Judges will change this, but that’s the current law)

 

The boys saw the judge but were told this was not an opportunity to discuss any issues in the case including their wishes and feelings. It is plain from the transcript of the discussion that they could not believe what they were hearing and the judge observed that ‘they were very concerned and very disappointed’. The judge in seeking to avoid a discussion about the evidence clearly felt unable to listen to them. She entered into a discussion about the inadvisability of the boys’ written communications that it is difficult to characterise as being other than an admonition. They boys left the process distressed and apparently even more convinced in their view that no-one was prepared to listen to them.
 

This case has not been about judges seeing young people. I shall return briefly to the wealth of material on that topic. The question which arose out of the discussion with the boys was whether, despite her best intentions, the judge inappropriately relied upon her impressions of the boys and what they said to her to come to conclusions in the case. Sadly, perhaps as an inevitable consequence of the charged emotions in this case, the judge made that error. There are a number of passages in her judgment where the problem is highlighted. I shall choose three:
 

“[26] The findings that I make on this evidence need to be considered in the context of the opportunity I had to meet with the boys this morning. The parties are aware that I felt that they are at the moment presenting as being rather out of control, not subject to parental influence or indeed able to set appropriate boundaries for themselves. I also formed the view that they had perhaps rather lost touch with reality in relation to what was going on and I do have a concern that they are rather immature and may somehow view this as some sort of fantasy adventure.
[…]
[24] […] My own experience this morning is that these children could exhibit considerable distress and yet were able to calm themselves very quickly and the word ‘histrionic’ was exactly the one which I would have used in relation to their behaviour that I observed.
[…]
[47] I was particularly struck by something that the Guardian said, which is that “it is almost like the children expect someone to put their arms around them and to say ‘do not do this anymore'”. Again that exactly resonated with my own assessment after seeing the children this morning. They are out of control. “
I need go no further than the recent judgment of this court in Re KP (A Child) [2014] EWCA Civ 554 for a comprehensive statement of the law that takes account of the Family Justice Council’s [FJC] April 2010 ‘Guidelines for Judges Meeting Children who are Subject to Family Proceedings’ [2010] 2 FLR 1872, the FJC’s Working Party December 2011 ‘Guidelines on Children Giving Evidence in Family Proceedings’ [2012] Fam Law 79 and the recent decision of the Supreme Court in the Matter of LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] 2 WLR 124. It remains an essential principle of the guidance and the relevant authorities that a meeting with a child is not for the purpose of gathering evidence. There is likewise an emphasis on the court hearing the voice of a child and of the court reminding itself that a child’s wishes and feelings may not be capable of being represented to the court by the adult parties. The court should ensure that the child’s access to justice is effective, whether that be through formal separate legal representation or the offices of a guardian, a family court advisor or a parent. Even where formal representation is appropriate there is a wide discretion in the court to determine the extent of a child’s participation.
 

I have regrettably come to the clear conclusion that the judge’s discussions with the boys strayed beyond reassurance, explanation and listening. It was certainly not the latter and to the extent that the boys needed it to be, the judge could and should have adopted the practice of listening, disclosing what was said and not placing reliance on it in her judgment. It is entirely possible to listen without gathering evidence. Where a process is intended to or as here inadvertently leads to evidence being gathered, including by very firm impressions and judicial assessments about the boys’ needs, wishes, feelings, behaviours and the risks which their own needs might occasion, then consideration should be given to whether that evidence should be gathered or considered by a suitable neutral person (an expert or a guardian who is not conflicted). In a case where the conflict that had arisen in this case does not exist, the children’s guardian could have been asked to sit in with the judge or read the transcript of the discussion to assess the material in context. A process needed to be agreed that permitted the evidence to be challenged without harming the boys themselves.
 

The judge’s reliance on her own assessments of the boys derived from her discussion with them was procedurally unfair and to the extent that her primary concern was that they were ‘out of control’ it dominated her thinking. That was a value judgment derived from evidence gathered by the judge in a discussion that was not intended for that purpose and which could not be effectively challenged by others.

 

 

Sadly, with a string of appeal points  being upheld, there was never any doubt that this appeal would succeed. I think the Court of Appeal were right to recognise that there are cases in which Judges are urged and feel that a decision has to be taken  (the politician’s syllogism – “Something must be done”  – “This is something” – “Therefore we must do this”   and that hard as it is to tell people that the decision needs more evidence, more analysis and more thought, with an unsatisfactory status quo remaining in the interim, sometimes that is the right thing for a Judge to do.   The Court of Appeal also remind the parents that the extent of their adult quarrel has been very damaging to their two children.

 

55.The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court.
56. The absence of a determination on the question of separate representation and the severe conflict that has arisen between the boys and their guardian and solicitor mean that I am persuaded that they have not been afforded access to justice. A separate representation application must be properly considered with evidence as soon as possible. I say to the boys who should be asked whether they wish to read this judgment, that the degree to which they may be harmed by being even further enmeshed in their parents’ conflict and inappropriately being involved in the decisions that have to be made by adults, will have to be balanced by the harm that is being done by their perception that no-one is listening to them. The conclusion of an application is by no means clear but whatever the conclusion is, it must provide for them to be listened to and to participate to an appropriate extent.
 

57.I return in conclusion to the boys’ parents. Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother’s approach has contributed to the damage that has been caused to the boys’ emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that.
 

58. The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court’s orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as ‘implacable hostility’ cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present.
 

59. Mothers, fathers or both are just as likely to be responsible for the precipitating circumstances in such a case which may be far removed from and are sometimes if not often, irrelevant to the conflict which endures. Such research as there is into available and workable solutions suggests either a) that there should be a careful analysis of the reasons for the conflict by fact finding to identify and assess risk to the children and sometimes to one or other of the adults and/or b) that if the reasons for the conflict do not present identifiable risks to the children or their carer and sometimes even if they do, a resolutions approach to the conflict can be adopted to try and resolve it by professional intervention such as individual or family therapy, external support from local authority children’s services or education and assistance from the various parenting programmes and activity directions that are now available under the CA 1989 or otherwise. Sometimes it is necessary to fundamentally alter a child’s arrangements by removing that child from the adverse influence and control of one parent by placing the child with the other parent and making a child arrangements order that has the effect of limiting the relationship with the harmful parent. In an extreme case (and I emphasise they are and should be rare) where the child is suffering significant harm or is likely to suffer significant harm, the court can intervene and exercise its ultimate protective function by removing the child from its parents and by placing the child into public care so that the local authority shares parental responsibility with the parents.
 

60. The removal of a child from the care of a parent whether by a transfer of living arrangements from one parent to another or by placing the child into public care is not and must never be a coercive or punitive measure. It is a protective step grounded in the best interest of the child concerned. In so far as there was a perception in this case that either the transfer of the conditional residence of the boys to their father by the Recorder or their subsequent removal from their mother was a punishment of the boys for their behaviour and for being unwilling to accept contact with their father, then that was inappropriate.
 

61, For a family to be facing the possibility of a wholesale change of living arrangements between parents because of the harm that one or both of the parents is causing is bad enough, for a family to face the removal of children into public care when they are both capable of caring for their children is, frankly, sad beyond measure. This is such a family. I say that without attributing any causative blame to one parent or the other in the sense of saying that one or other parent is responsible for the problem that now arises. That may or may not need to be determined by a fact finding exercise. This court does not yet know. Where the parents are to blame is that neither of them has facilitated a joint approach to the resolution of their conflict for the benefit of their children. It is time for this court to start saying that which is obvious. The family court is empowered to make decisions for parents who cannot make them for themselves but it cannot parent the children who are involved. When parents delegate their parental responsibility to the court to make a decision, that decision will be in the form of an order. The court cannot countenance its orders being ignored or flouted unless an appropriate and lawful agreement can otherwise be reached. That is not simply to preserve the authority of the court, it is to prevent continuing and worsening harm to the children concerned. Parents who come to court must do that which the court decides unless they agree they can do better and there is no court order that prevents that agreement.
In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.
One can only sympathise with any family court judge who is faced with such a case. There are no right answers but inevitably there are many wrong answers. To make it worse, in this case, the proceedings had to be re-allocated because of judicial indisposition so that the new judge came to the case without the detailed knowledge of the previous ten years of litigation. The hearing was said to be urgent so that, no doubt, all other judicial work stopped and the case took priority. It was said to be a case that needed an immediate order. Hindsight is a wonderful thing and the nearest a first instance family judge can get to it is to take time for reflection.

 

 

 

What is wardship?

 

I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today.  (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)

 

What is wardship?

 

If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)

Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)

 

In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority.  (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)

 

{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}

 

What are the powers of Wardship?

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

 

The Practice Direction 12 D is quite helpful in explaining Wardship

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12d

1.1
It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –

(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

 

[You can see that (c) and (e) are pretty relevant to Aysha's case]

Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are.  The Inherent Jurisdiction is more like Superman –  he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time…  LET IT GO, Suesspicious Minds, get over it)

 

And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite

 

What can’t be done under wardship?

 

When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.

 

s100 Children Act 1989 Restrictions on use of wardship jurisdiction.

(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)The court may only grant leave if it is satisfied that—

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)This subsection applies to any order—

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

 

English please?

 

(i) The Court can’t use wardship to put a child in the care of the Local Authority.  That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met.    [For Aysha's case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]

(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion”  – if there’s a wardship order, the High Court have to make the individual decisions

(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act   (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)

 

Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY.    [There's an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8's "necessary" test and says that for those purposes he adopts Lady Hale's formulation of "nothing else will do"   - that doesn't seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]

 

Who can apply for wardship?

 

As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989  (Emergency Protection Order, Interim Care Order, Recovery Order)

They can also be issued by a connected person, generally a parent  – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.

Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.

It is theoretically possible that the police could apply, but I’ve never come across such a case.  They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.

 

When does wardship run out?

 

It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.

 

What about getting free legal advice?

 

This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding  – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire  (non means) or even if someone looking at the case would think that their argument is poor (non merits)

The next tier of public funding is those matters set out in Schedule 1 of LASPO http://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted  which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.

Eep. What now?

Well, the final tier is Exceptional funding under s10* of LASPO.  If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights.  Hardly ANY of these have been granted.

http://www.familylaw.co.uk/news_and_comment/four-family-law-applications-for-exceptional-case-funding-have-been-granted-between-april-and-june-2014#.VAXrAGOgktV

In the last year, of 821 applications, 8 were granted. And only 4 for family cases.

 

Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested.  What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.

(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital.  It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)

 

What are your options if you CAN’T get free legal advice?

 

You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.

You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.

You could contact the bar pro bono unit  (there are lawyers who will represent you for free.  http://www.barprobono.org.uk/

Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs”   – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.

 

 

 

*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}

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