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Monthly Archives: February 2012

Not just clean-bowled

I’ll be doing a more detailed analysis of the Government’s decision, when responding to the Family Justice Review, to not adopt the recommendation to abolish Court fees for care proceedings, which went up from £175 per case to around £5000 (if the case goes to final hearing, it is cheaper if it is resolved at Issue Resolution Hearing), but in very broad terms :-

The consultation about the change to fees was rolled out on a Government website on New Year’s Eve  (I like to think Local Government lawyers are hard-working and don’t keep the hours that the general public might stereotypically associate with public sector workers, rightly or wrongly, but even we have better things to do on New Year’s Eve)

The consulation proceeded on the premise that the principle that the full costs of care proceedings to the Court service should be met by Local Authorities. And basically gave a range of choices about whether they wanted to be punched in the stomach, kidneys or face while they were being mugged. There was plenty of talk about how the fee increase wasn’t intended to be a lever to drive down the number of care applications within that consultation. Most LA lawyers who responded to the consultation made exactly the point that there was a risk of it being used that way. The consultation disregarded this.

The numbers of care proceedings issued dropped like a stone (there was the additional complication of the PLO, which got rid of delay in care proceedings (ha!) by front-loading them so that all the delay happened before the case got to Court, so I couldn’t claim that they were responsible for the entireity of the plummet)

Then Baby P came along, the numbers spiked up and have kept doing so, and the Government invited Lord Laming to report, saying that they would accept all his recommendations. He reported, saying that he feared that if even one application that should have been made to Court had not been because of the fees, then they should be scrapped and recommended that a report look into that.

The Plowden review reported and recommended the abolition of Court fees.  The Government didn’t respond to that. In fact, it took a Parliamentary question to get from them that they intended to kick it into the long grass and leave it for whoever won the (at the time imminent) election to resolve.

The new Government kicked it into the long grass, and waited for the Family Justice Review. The interim FJR recommended the abolition of court fees. The full report came, and recommended the total abolition of Court fees in care proceedings. The Government accepted most of the other recommendations (wavering about presumptions of shared parenting) and rejected the abolition of Court fees in care proceedings.

To me, this is a batsman at the crease who is clean bowled, and says he wasn’t ready, then is LBW next ball, and says the sun was in his eyes, and then finally is caught and just stands at the crease, refusing to walk and says “Come on, next ball – I’ve got a good feeling about this innings”

Why does it matter?  Well, it has a huge financial impact on Local Authorities – it would be fair to say that most of them don’t get anywhere close to breaking even from the money Central Government gave for this purpose, and pay out far, far more. But more importantly, it has an impact on parents.

When I started out, I used to issue care proceedings on parents who were in danger of losing their children if they didn’t turn things around – we applied for Supervision Orders and Interim Supervision Orders. And in many cases, being in Court, and having representation, and hearing from a Guardian and a Judge who would explain to the parents that they could be helped to avoid an awful calamity did the trick.  LA’s don’t apply for many Supervision Orders now – despite the spike in the numbers of proceedings, most of the time, LA’s go to Court when they perceive they are at the end of the road with the parents (sometimes we’re right, sometimes we’re wrong, but the mindset is that we are in Court to say ‘we can’t manage this at home any more’).   The application form for Care proceedings has a section on it (before the page where the form asks you the gender of the mother…) where you indicate whether you seek an Interim Care Order or an Interim Supervision Order.  If I had any confidence that HMCS kept stats, that would be a fine Freedom of Information question – the proportion of cases where an LA issues seeking an Interim Supervision Order  (reflecting that it isn’t the end of the road, but a significant junction where a parent can choose a better course)

And the other huge impact that the Government hasn’t thought about, is that if you keep the Court fees as they are, and implement the hard six month cap; you exclude Local Authorities reaching a conclusion in cases where there’s general progress, but a wobble (a parent is abstinent for five months, but has a lapse just before the final hearing for example) to say “Let’s give this a try with a Supervision Order – we can always bring it back to Court”  if giving that benefit of the doubt is going to cost £5000 to get it wrong. Much easier to do it under a Care Order.  Which is fine if the lapse was just a lapse, and no more, but what happens when it is a relapse instead, and rather than having to bring it back to Court and prove it, the Care Order (which remember will come with a much looser care plan than at present) just kicks into force and the child is removed without a hearing?

I rather suspect we might be seeing an increase in the number of Care Orders made at final hearings, as an accidental consequence of a flawed system.

what can the past of section 31 tell us about the future and the Family Justice Review?

 

 

No plan ever survives contact with the enemy

 

 

                                      Helmuth von Moltke the elder

 

 

 

I’m fairly sure that I’ll be writing about the Family Justice Review and their proposals on many occasions, but I just wanted to set aside any ideas for a moment about the merits of the ideas within it, or how practical they are to implement, and just to take the main headline idea and imagine how it will be once exposed to lawyers in the field; using the history of the threshold criteria and the litigation around that as an example.

 

I’m sure everyone who has done any public children work knows that the test for whether the Court can consider making orders that give the State (in the form of Social Services/the Local Authority) powers about children,  is the ‘threshold criteria’ set out in section 31 of the Children Act 1989.  (It is worth noting that the threshold criteria being met doesn’t mean that an order will be made or what it would be, but rather that it allows to proceed to the next stage of considering what is in the child’s welfare – no threshold means the State has to go away)

 

Section 31 (2) says “A Court may only make a care order or a supervision order if it is satisfied  -

 

(a)  that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)  that the harm, or likelihood of harm, is attributable to –

(i)            the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)          the child’s being beyond parental control  “

 

 

That appears to me to be a solid piece of drafting– positively wonderful by modern standards (where half of the relevant bits would be defined in Schedule 2 and another key element being with reference to other sections). It is self-contained – everything you need to know is set out in that one section, rather than cross-referring, and using everyday language and concepts.  [You can see, for example, that paraphrasing it as ‘the State have to prove that you’ve caused your child harm, or will probably cause them harm in the future, by not doing what the State expects of you as a parent’  distils the essence of it, without getting too far away from the concepts as stated]

 

Now, following contact with lawyers and thirty years of cases which have unpicked within it every single word other than ‘child’, the actual unspoken and unwritten, but legal meaning of the section is as follows, [original in bold, additions in italics]

 

 

A Court may only make a care order or a supervision order if it is satisfied [on the balance of probabilities, with the burden of proof falling upon the applicant Local Authority]   -

 

(a)  that the child concerned is suffering [at the time of the hearing of the application for the care or supervision order, or at the time when the local authority initiated the procedure for the protection of the child concerned provided those arrangements have been continuously in place until the time of the hearing – to cover the situation where a child is voluntarily accommodated before the application is made and would no longer be currently suffering significant harm at the time the application were made, it is possible to consider later acquired information as to that state of affairs at the relevant date but not evidence of later events unless these events can be used to show the state of affairs at the relevant date ] , or is likely to suffer [likely meaning having a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case, the seriousness of the allegations or the consequences having no impact upon the standard of proof to be satisfied,  and the facts upon which that prediction of likelihood is based having been proven to the balance of probabilities to have actually occurred, it not being sufficient that those facts may have occurred or that there is a real possibility that they did, and establishing that one child did suffer significant harm does not automatically establish that another child of the same family is likely to suffer significant harm, note also that the Court is not limited to looking at the present and immediate future but may look at the long-term future], significant harm [the harm must be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it; society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent, it is not the province of the State to spare children all the consequences of defective parenting; the harm must be more than commonplace human failure or inadequacy, where considering whether a child’s health or development has been significantly harmed one has to compare with that which could be reasonably expected of a similar child; and

(b)  that the harm, or likelihood of harm [see everything above], is attributable to

  1.     the care given [which can go beyond physical care and includes emotional care] to the child, or likely  to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him [it is not necessary that there be culpability on the parents part who may be trying their hardest yet failing to reach the required standard of care and thereby causing significant harm, also this test can be met in a circumstances where one parent has caused significant harm and the other has not, or where a parent and a person other than a parent, such as a childminder, cannot be excluded from having perpetrated an injury to the child where the identify of the perpetrator cannot be established on the balance of probabilities even where there is only a possibility that the parents themselves were responsible for injuries that the child had sustained,  regard may also be had to whether the failure of a local authority to provide the necessary statutory support has contributed to this]; or
  2. the child’s being beyond parental control [this must have caused the significant harm or created the risk of such harm, there is no requirement to show some failure on the part of the parent in order to establish that a child is beyond parental control, and parental control is something which will no doubt vary with the age of the child]

 

 

and we have gone from an 87 word definition to nearly 700  words, nearly an eightfold increase; and from a definition of a vital concept which could be read (albeit with some throbbing about the temples) by an ordinary person  to one which is to all extents and purposes unintelligible.

 

 

The point is, that these were all ‘clarifications’ or glosses to the existing statute that were required, and which arose in the context of individual cases where those shades of meaning were vitally important.

 

I have particularly fond memories, having lived through it of the changes to “likely” where there was a period when one couldn’t tell from one month to the next whether a sexual abuse allegation was capable of meeting the threshold or not. Frustrating for the day to day job, but fascinating for the inner-law-geek.

 

This was largely through the H&R case which changed tack at various stages of the process until the House of Lords delivered a final decision in 1996.  During that lengthy process, the sands were shifting as to whether the law was going to import an additional test in accordance with David Hume’s philosophy that ‘extraordinary claims require extraordinary proof;  or in the gloss put on it by lawyers ‘that where the allegations are very serious, a higher standard of proof is required’, this eventually morphing into ‘for very serious allegations, the difference between the criminal standard of proof and the civil standard is, in truth,  largely illusory-  this last commonly asserted maxim, derived from some judicial remarks in firstly a sex offender order, and secondly an ASBO case took a second House of Lords case in Re B  2008 to finally resolve once and for all  that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied.

 

 

So, and here is the million-dollar question, how robust can a six month cap on the duration of care proceedings be, even if it is put into statute?  The fact that the FJR and the Government response both talk about there being a need for Judges to be able to make exceptions to the six month cap where the welfare of the child requires it, means that a  clause that says :-

 

Section 1   “The duration of care proceedings shall not, under any circumstances, exceed six months, the duration being calculated as being from the date that the proceedings are issued to the making of a final order”

 

cannot be what is being considered, and anything with more fluidity than that is just going to be litigated with vigour, to try to expand the definitions and categories and terminology that applies to the exceptions, and in the meantime, there will be a temptation to instead fudge the 6 month cap by saying that in the circumstances of this particular case, the child’s welfare requires additional time for the issues to be determined.

 

We are, after all, a group of professionals who spent from 1989 to 2008 arguing about what the word ‘likely’ meant, and aren’t necessarily done with it quite yet.

I was reading a case today – notably this one 

L (Children) [2011] EWCA Civ 1705

 in which Lord Justice MacFarlane manages to squeeze more elegance into one paragraph than most mortals can dream of  – thus

“In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge’s detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?” 

The appeal is considering some very specialist medical evidence, centring around whether two children who had died did so of unnatural causes, or of some medical condition; and what impact that had on the likelihood, or otherwise of future harm to the siblings. More than that, however, the Court had to wrestle with the hypothesis that the cause of the children’s deaths might be as yet unknown to medical science, and thus unquantifiable. The experts were, no doubt through very careful, appropriate and skilful questioning, drawn towards placing some percentage chance on that possibility – two felt that the chance of the cause being non-accidental was around 90%, and one felt that it was no higher than 70%.  Both, of course, result in it being open to a Judge to make a finding that it was more likely than not that the deaths had been caused non-accidentally and go on to derive a likelihood of harm to the younger children.

But it struck me, that here were doctors, extraordinarily eminent in their field and capabilities – with demonstrable, verifiable and repeatable empirical evidence – they had been able to conduct tests and establish the presence of a particular gene variant; yet prepared to tell a Court that effectively their science only goes so far, and that there are possibilities that we do not yet know of, that in years to come might very well dramatically tip those percentages given above.

It reminded me of RE R (A CHILD) sub nom R (CARE PROCEEDINGS: CAUSATION) (2011) [2011] EWHC 1715 (Fam)       Sadly, I don’t have a link on that one – but the facts are fascinating – a serious head injury, coupled with a leg fracture. The Court grappled with the medical evidence, and one medic in particular outlined to the Court that there was a school of thought in relation to head injuries amongst medical specialists which simply accepted that at present, we just don’t know enough to be confidently certain and making bold diagnosis about causation of injuries.

Again, that’s an expert who has the basis of science and empirical evidence behind them. There are scans and tests, and results, and what one expert sees on the scans, another would see (though they might come to different conclusions about the cause, they’d agree on the nature of the injury)   And yet, within care proceedings, one never sees that with psychologists – a Socratic acceptance that we don’t yet know everything, and we are making our best informed guess at it, based on the information and techniques that usually work.  A key difference for me, is that the medical experts are looking at something which has happened, and can look carefully at the evidence that supports such a diagnosis, whereas the psychologists are taking something as generally unpredictable as human behaviour, and what someone might do in six months, a year, and making predictions about the future for that person – notwithstanding that the sort of person who often goes to see a psychologist in care proceedings is doing so because they’ve lived a life doing non-rational and unpredictable things.

I personally think that the doctors who spoke up in those hearings and said effectively “It would be lovely to be able to tell you that I’m SURE that this was an accident, or not an accident, or organic in cause, but all I can be SURE of, is that we can’t be SURE”    – my more cynical youth would have speculated that they were making a name for themselves as helpful people to call if you wanted a counter-opinion, but I think with the benefit of age and experience, that they were just calling it truthfully.

If the people who are telling you, with tests and X-rays, and chemical analysis, that they can’t be certain of what happened in the past; how can we put so much stock in the people who tell us with no hard science that they’re sure of what is going to happen for this child in the future?

http://www.familylawweek.co.uk/site.aspx?i=ed95596

http://www.familylawweek.co.uk/site.aspx?i=ed95596

Hello world!

There are lots of bits of family law that I like – wrestling with the LSC and prior authority is not one of them, I have to say. Of which, more probably later.

 

But I think, even as a long-standing local authority care lawyer, these are my two favourite extracts from judgment  (even more than Kent County Council v G saying “you can’t make the LA pay”… )

 

Lord Templeman in Re KD 1988   “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature” 

 

and building on that, Lord Justice Headley in Re L (Care threshold criteria) 2006  “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.” 

 

I happen to think that those two sentiments are very sound building blocks for a system of family justice, and a starting point that the State intervene only when to not do so would be harmful to the child. I’m not sure those sentiments will necessarily hold sway in ten years time, as we move towards cheaper and quicker justice, with fewer questions being asked, but I hope to be wrong.

 

The blog is going to be about law, and an unhealthy fascination with the detail of it, and occasionally the politics of it; as they pertain to child protection law. It will often be with a local authority slant, though I hope I’ve said enough above to convince you that it isn’t going to be any Daily Mail  “adopt-em-all and throw away the key” tirade.

 

The name of the blog is a combination of healthy scepticism, an unquenchable desire to impersonate Roland Gift singing that particular Elvis song, and a lifelong love for Dr Suess.  Thanks for reading…

 

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