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Monthly Archives: March 2012

“Opening the windows and breathing in petrol”

The recent furore over petrol-shortages (which have come about because people think there might be a petrol-shortage, and have thus manufactured the situation they were fearful of)  reminded me of a piece of work I did way back in the mists of time, when “Schedule One offender” was a phrase often deployed within care proceedings.

Peculiarly, this phrase was generally distorted by the mothers within care proceedings to be “that Schedule Offender One”  making certain aspects of conversations take on a Liverpudlian, Brookside twang (despite being on the other side of the country).

The piece of work I had to do was to slog through all of the legislation and draw up a list of exactly what offences WERE accurately labelled as Schedule One offences, and which were not.

One of the particular quirks (as it arose in a case where the parents following the final hearing, shut the contact supervisor in a cupboard and legged it with their child being on the run for about a fortnight, and plea-bargained that down at criminal trial to “attempted abduction”) was that for many offences, an attempt was not a Schedule one offence, only the successful execution of it.

But I do recall, quite vividly that at that time, you could become a Schedule One offender by selling petrol to a child under sixteen.

(and frankly, I don’t need much of an excuse to (a) be topical and (b) throw in a Jam lyric)

I also remember that allowing children under 14 to do street performances, and that allowing a child under 12 to do any dangerous activity would be Schedule one offences.   It was many, many, years ago, but I also recall that regardless of whether a child was within ten miles of you, it was a Schedule One offence to set a fire in a telephone box….

“Here they are, they’re so appealing…”

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

“Oh don’t leave me alone like this” – the legal test on Stays

Apologies both for the lack of blogging (have been on puppy-adoption leave) and bringing East 17 into this. Possibly the first time East 17 and the Children Act 1989 have been combined together, unless there was a case conference about whether having your child dressed head to toe in Burberry was emotionally harmful…

I thought I’d share the relatively recent decision on applications for Stays in care proceedings, firstly because it filled a gap in caselaw  (it remains a source of amazement and inspiration to me that nearly twenty years after the Children Act took effect, there are still gaps to be filled in), and secondly because I was trying to find this the other week, knowing that it existed and what the gist of it was, and I had a hell of a job…

The tl:dr version is that the case (Haringey 2011) derives these five principles to be applied in any application for a stay :-

  1. The Court must take into account all the circumstances of the case
  2. A stay is the exception rather than the general rule
  3. The applicant seeking the stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted
  4. The court applies a balance of harm test, in which the prejudice to the successful party must be carefully considered
  5. The Court should take into account the prospects of the appeal succeeding, and only consider a stay where there are strong grounds of appeal or a strong likelihood of success.

 

 

The word nugatory struck me as being potentially interesting, as well as having good ‘mouth-feel’  (like the word I got from Inky Fools this week ‘apricate’ meaning to bask in the sun)  and so I double-checked it  – it means ‘trifling’ or ‘of no value’  and derives from Latin meaning ‘jester’ or ‘trifler’

 

 

Neutral Citation Number: [2011] EWHC 3544 (Fam)

Case No: BT 09 C 00235

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

7th October 2011

B e f o r e :

MR. JUSTICE MOSTYN
____________________

Between:

NB

Applicant

- and -

LB OF HARINGEY

Respondent

____________________

____________________

MISS TERESA PRITCHARD (instructed by Eskinazi & Co.) for the Applicant
MR. JUSTIN AGEROS (instructed by LB Haringey) for the Respondent
MISS JANE PROBYN (instructed by Donald Galbraith & Co.) for the Guardian

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

MR. JUSTICE MOSTYN:

  1. Yesterday, at 5.30 p.m., the North London Family Proceedings Court made an interim care order in respect of JG, who I think is nearly 3 years old. The application before me today is for a stay pending an appeal of that decision, which appeal would likely be heard on 28th October 2011 by the Circuit Judge in the Barnet County Court.
  1. Given the nature of the application and of the decision I have to make, it is important that I do not say more than is strictly necessary to decide the application and do not say anything which might influence the outcome of the appeal one way or the other.
  1. The application was made against a backdrop of considerable chaos in the life of this child. His mother is an admitted drug user who claims to have foresworn the use of drugs until comparatively recently, six weeks ago. She is a person who has not complied with agreements and directions for testing for drugs notwithstanding the plainest warning to her on the face of an interim order of the court that were she not to do so the inevitable inferences would be drawn; and she is a person who maintains a close relationship with her partner who is in prison convicted of serious domestic violence upon her.
  1. The position of the mother before the justices was that the interim threshold was not passed. In contrast, the position of the guardian was that the interim threshold was indeed passed but that an interim supervision order rather than an interim care order should be made. The position of the local authority was that the interim threshold was passed and an interim care order should be made. The result of the case was that an interim care order was made. The magistrates produced their reasons in an extremely abbreviated period of time. Inevitably, analysis of those reasons reveals that they may have been better put but the pressure of time meant that defects were almost inevitable.
  1. A complaint is that section 5 of the written decision relies only on the risk of domestic violence at the hands of a man who is in prison and will remain in prison until the matter is next considered by the justices, and does not make any explicit reference to the other matters, although in their account of the history it is clear that those other matters were at the forefront of their mind, which is hardly surprising given that the mother herself had given oral evidence before them.
  1. The appeal is governed by Part 30 of the Family Procedural Rules 2010 and Rule 30.8 states that an appeal notice does not operate as a stay of any order or decision of the lower court unless the lower court or appeal court orders otherwise. There are numerous authorities bearing on whether a stay should be granted although, rather surprisingly, there is none so far as I am aware on whether those tests are modified in a case involving a child, whether in private law proceedings or public law proceedings. Plainly, the test which I will adumbrate in a moment has to be seen through the welfare prism that overarches all family proceedings. That said, the principles cannot, in my judgment, be materially different whatever the nature of the dispute in hand.
  1. The leading authorities are Hammond Suddard Solicitors v Agrichem International Holdings Ltd http://www.bailii.org/ew/cases/EWCA/Civ/2002/474.html<br />
    Link to BAILII version” href=”http://www.bailii.org/ew/cases/EWCA/Civ/2002/474.html&#8221;>[2002] EWCA Civ 474, Contract Facilities Ltd v The Estates of Rees (decd) [2003] EWCA Civ 465, the old Court of Appeal case of Wilson v Church (No. 2) [1879] 12 Ch Div, 454, an unreported decision of the Court of Appeal, Winchester Cigarette Machinery Ltd v Payne (No. 2), 15th December 1993, and a helpful decision which seeks to draw all the authorities together given by the Chief Judge of the High Court of Hong Kong, Ma J, Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd, HCCT No. 90 of 1999. In that latter case the Chief Judge stated:

“7. The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It can be put this way, the existence of an arguable appeal, that is one with reasonable prospects of success, is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exists arguable grounds of appeal no stay will be granted. Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal will succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay. (See Winchester Cigarette Machinery Ltd)

8. In most cases the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require in the absence of any other factors the applicant to demonstrate strong grounds of appeal or a strong likelihood of success.

From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.”

  1. In this case, given the proximity of the appeal hearing and given the nature of the dispute, namely, the effective residence of the child for the next three weeks and one day, there is no question that the appeal will be stifled were a stay not to be granted. It therefore follows, in my view, that in order for a stay to be awarded it has to be demonstrated today that there are strong grounds of appeal or a strong likelihood of success. I find it impossible on the material before me to reach that conclusion. Indeed, in circumstances where it was accepted by the guardian, and indeed positively asserted by the local authority, that the interim threshold had been passed, it likely becomes a simple question of analysing whether the exercise of discretion made by the justices to award an interim care order rather than an interim supervision order has miscarried or it is otherwise demonstrated to be plainly wrong. On the material before me I cannot say that that is the case, although I am not, I emphasise, deciding the appeal. What I am deciding is that I am not satisfied on the material before me that there are strong grounds of appeal or a strong likelihood of success and the application is therefore refused.

sound the action klaxon, summon action jackson…

It is all go today, good job it is my non-working day. My bits will be in bold, on this piece – the non-bold stuff is directly from the report.

The much-vaunted Government Adoption Action Plan is finally published. No longer will we have to rely on scraps on information leaked by Ofsted or behind paid firewalls at the Times (just a little gripe that if you are going to launch far-reaching policy guidance on vulnerable children, maybe making people pay Rupert Murdoch if they want to read it isn’t the greatest plan)

Here’s where it is  (in usual government style, it takes a while to find by searching, so I’ll save people the trouble)

http://media.education.gov.uk/assets/files/pdf/a/an%20action%20plan%20for%20adoption.pdf

Firstly, tackling delay in adoption is a laudable aim, as is trying to do something about the disparity of time that children of different ethnicity have to wait, and promoting the concept that adoption might be something that more people want to try and removing some of the more unnecessary barriers to good-hearted people coming forward are all good things. 

Let’s see if they’ve accidentally thrown the baby out with the bathwater, however. The headlines flying around suggest that the report is yet more micro-management and exactly the sort of Tony-Blair target-setting that has (a) worked so badly in the NHS and (b) Munro thought so little of.  Are those headlines reflective of the report as a whole, or have the Government just done a press-release for the media that’s all “tough on lazy social workers, tough on political correctness gone mad” but with a report that is actually much more nuanced and thoughtful?

A shocking statistic early on  (albeit from 2004) – that 42% of looked after children aged between 5-10 had a mental disorder of some kind – this being five times the figure for children of that age-group generally.

The current number of looked after children under five is 15,680 and growing quickly.

.Delays in the adoption system cause lasting harm for vulnerable children, and may rob them of their best chance of the love and stability of a new family.  Based on an in-depth study of the case histories of 130 older looked after children for whom adoption had been identified as the best option, Dr Julie Selwyn concluded that: ‘delay in decision making and action has an unacceptable price in terms of the reduction in children’s life chances
and the financial costs to local authorities, the emotional and financial burden later placed on adoptive families and future costs to society’. We must not and will not allow unnecessary delay to continue

There’s a nice recognition of both the important role that social workers have, and the risks of breakdown – it is pleasing to see some proper research being commissioned into adoption breakdowns  (I’m sure we’ve all heard different figures bandied about, to suit various agendas, as to what proportion of adoptions break down and it will be good to get a definitive answer, and hopefully some better understanding of the factors that lead to this and how we can address them.)

32.Social workers have an extremely sensitive, challenging, and important job to do.  We expect them to make decisions which change lives, on what can only ever be imperfect evidence.  We owe them a great deal of gratitude.
33.When a social worker is considering a decision about adoption, the risks of getting it wrong are all too evident in terms of the impact on vulnerable children, birth parents and adoptive parents.  What can be less obvious is the harm done to the child by delaying adecision in order to allay all remaining doubts.
34.Social workers need time to gather the necessary evidence, work with birth parents and provide the basis for a robust decision.  Some argue that efforts to speed up adoption will lead to an increase in adoption breakdown, by forcing social workers and local authorities to make rushed and therefore lower quality decisions.  Adoption breakdown is of course an important issue and we currently have too little data and evidence about it.  Estimateshave tended to put it at around 20%, but in his recent report, Martin Narey convincingly argued that the true figure was much lower – around ten percent for children adopted under the age of five, and just three percent for those adopted under the age of one.  He cited a study which followed a high risk group of children – adopted between the ages of five and eleven – until their fourteenth birthday. It found that 23% of the adoptions had broken down by that age, which would suggest a much lower rate for adopted children overall.  We have commissioned the University of Bristol to undertake further research into the rate of and reasons for breakdown
35.But it is too simplistic to argue that speedier adoption will lead to more adoption breakdown.  First, it is wrong to suggest that unnecessary delay in the system is all down to social worker decision-making – the causes are much more widespread and include the regulatory and accountability frameworks, the supply of prospective adopters and issues in the family justice system. Second, as we have seen, taking longer to make decisions is in itself harmful to children and reduces the chance of successful adoption

This also sounds like a sensible proposal

.Currently, the generic degree for social workers contains limited content on child development, attachment theory and other relevant research from neuroscience, and very little on adoption.  The Government is asking that universities address these gaps as a matter of urgency
43.The Family Justice Review identified a similar issue and suggested that a better understanding of child development and the negative impacts of delay for children was an absolute requirement for all family judges.  It recommended that the Judicial College, the provider of training for judicial office-holders, reflect this in its training for family law work.  The Government accepted this recommendation and will work with the JudicialCollege to take it forward.
44.At present, there is no readily accessible reference material for family justice professionals, such as judges, magistrates and lawyers, on the impact of delay on a child’s development. To address this, the Government has commissioned Professor Harriet Ward to produce some concise but authoritative guidance which summarises the key research evidence in the context of care proceedings.  The Government will make this guidance available later this year

Best-practice – they were taken with the involvement of Coram in adoption, and particularly this model 

We spoke to a number of local authorities who had rigorous case management systems, which were effective in tackling delay.  The London Borough of Harrow, which works with the voluntary adoption agency Coram, holds monthly meetings chaired by a Coram senior manager at which the progress of every child is tracked.  These meetings help social workers to balance the demands on their time and give due regard to the child’s pressing timetable in their decision-making. They provide a forum for delay to be escalated and tackled – for example by widening the search for a family to other agencies.  They can also offer a useful mechanism for the
Independent Reviewing Officer (IRO) to monitor the local authority’s performance of its functions.  Every looked after child has an IRO, who is appointed by the local authority to quality-assure care planning.
48. Our fieldwork showed that these simple but effective approaches are not yet standard practice.  The Government will therefore work with the Children’s Improvement Board – the consortium of local government representatives responsible for supporting local authorities in improving children’s services – to gather and disseminate best practice in establishing management systems that help ensure swifter high-quality decision-making.

Ethnicity – the big hot potato of a political issue  – the italics are mine here, to show plans for new primary legislation

52.That is not to say that ethnicity can never be a consideration.  Where there are two sets  of suitable parents available then those with a similar ethnicity to the child may be the better match for the child.  Sometimes an ethnic match will be in a child’s best interests, for example where an older child expresses strong wishes.  However, it is not in the best interests of children for social workers to introduce any delay at all into the adoption process in the search for a perfect or even partial ethnic match when parents who are otherwise suitable are available and able to provide a loving and caring home for the child.
53.Similarly, there are approved adopters who are ready and able to offer loving homes but who are too readily disregarded because they are single, or considered too old.  These can, of course, be relevant factors, but we know that in most cases delay and the instability associated with it will be the greater potential cause of damage to the child.
54.The Government will bring forward primary legislation at the next available opportunity to  address these issues.  The overriding principle in finding a match for a child will remain what is in the child’s best interests throughout their life

National register – requirement to search on this register after 3 months if child not placed

56. It also proposes a legislative requirement on all adoption agencies to refer to the Adoption Register all prospective adopters who are not being matched to a child within three months of being approved (provided the adopters agree).

58 .We are also considering other ways of promoting earlier and wider efforts in family finding.  Over the last decade, about 20% of children who have been adopted were placed with adopters recruited and approved by voluntary adoption agencies, but voluntary adoption agencies tell us they could do more.  One of the reasons that many local authorities do not make more use of them is that they think the inter-agency fee is   too high. In fact, Dr Julie Selwyn has found that inter-agency placements cost virtually the same as in-house placements when overheads are taken into account. As part of our work for the summer children in care publication, we intend to review the effectiveness of local authority commissioning arrangements for adoption, and consider whether further action should be taken to increase the role of voluntary adoption agencies in the system.

(I have to confess that this bit makes me apprehensive, and thinking that when some people hear the phrase ‘conflict of interest’ they might possibly be hearing something different to when I hear it. My fear prior to reading this report is that it would be setting up a system that public authorities couldn’t comply with, in order to smuggle in private practice taking over the role of adoption agencies – this being a political belief that private=better than public always, which has served us so well in IT, security guards, the NHS, construction of schools, hospitals etc over the years. This was the first bit that made me shudder, as I am very aware of the gulf that currently exists between in-house and inter-agency placement fees/costs)

Concurrent placements, and make it more easy to convert from fostering to adoption

.We would like the principles behind concurrent planning to be used more widely and for children as well as infants.  Whilst there can be no question of pre-empting a court decision, we want to see local authorities working with family-finding teams as early as possible to find potential permanent carers for children, and children with families who may, if the court agrees, go on to adopt them.  Where a child’s case is still in court and no placement order has been made, these placements are foster placements under the Children Act 1989.
62.While such practice is consistent with the current legislative framework, the Government believes that it should be easier for local authorities to approve prospective adopters as foster carers as this would enable more children to benefit from a greater continuity of care.  We will therefore consult on changes to legislation to enable a more stream-lined process for prospective adopters to be approved as foster carers in appropriate cases. This will enable vulnerable children, for whom there is little likelihood of a return home, tobe placed with their potential permanent carers as early as possible.  Local authorities will make sure that carers have the necessary skills, training and ongoing support to meet the needs of the child who is being fostered whilst allowing full consideration of the placement order application by the courts, and the birth family will continue to be supported.

I’m very excited about the idea of concurrent placements and think that it has potential to really transform outcomes for children. I was very excited when I first came to my area that it was something they did, but in three years, I’ve not done a single one, and the distrust of it amongst other family justice practitioners has made it unworkable. I can see a real and genuine fear amongst those acting for parents that foster carers (who often are a source of primary evidence about say, how the children react to contact or missed contacts) might find themselves in a conflict of interest if they are at the same time hoping to adopt the child AND providing the Local Authority with evidence about the children.

Recruitment and training of adopters   (all seems sensible – though I’m not sure four months gives the time both for a robust assessent and for the prospective adopters to have really undergone the rigorous self-examination that is required)

76.At the heart of the proposals is a radically redesigned two stage training and assessment process.  For the majority of prospective adopters the first stage (pre-qualification) will be completed within two months and the second (full assessment) within four.  There will be a fast-track process for people who have adopted before, or who are already approved foster-carers who wish to adopt a child in their care.
77.The pre-qualification phase will involve initial training and preparation – clearly separated from the full assessment phase.  During this stage, prospective adopters will use initial training sessions and online training materials to develop their understanding of adoption and to reflect on what they have to offer before progressing with their application.  The full assessment stage will consist of more intensive preparation and training and a new more streamlined and analytical assessment process. Adoption agencies will sign up to assessment agreements with prospective adopters setting out what will be involved and what the timetable will be, given their particular circumstances.
78.We think this new process has the potential to improve significantly the quality of the service that prospective adopters receive from the adoption system and to begin to increase the numbers that enter and complete the assessment process while providing the appropriate rigour. This in turn will improve its reputation and attract greater numbers of prospective adopters.  We accept these proposals outright.  Implementing them fully will require changes to regulations, statutory guidance and the National Minimum Standards. The Government will consult on the necessary changes later this year, with aview to implementing them as early as possible next year.  In the meantime, theGovernment will work with the national and local agencies represented on the WorkingGroup to prepare for successful implementation of the new system.   BAAF has produced a draft new assessment form and intends to pilot this over the coming months.  We agree in principle with the proposal that the government develop new online training materials,and will consider further how they can best be developed.
A new national gateway to the adoption system  – again, seems sensible that adopters can get a secondary route into the process and not be solely reliant on their own LA

79.The Working Group’s second key proposal is the creation of a new national gateway to the adoption system.  This would complement adoption agencies by providing a central point of contact for anyone interested in adoption.  Through a telephone helpline and website, it would provide independent advice and information about adoption and how to apply to become an adopter.  In particular, it would make sure those interested in adoption knew they were not obliged to adopt through their local authority, and help them to choose the right agency for them in their local area.  It would also assess management  information about how prospective adopters are treated and support a national customer service charter.
80.We think the proposal for a new national gateway could dramatically improve the experience of those who enquire about adoption.  We think it could also help prospective adopters to exercise greater choice and so encourage improvement by adoption agencies.  We accept the proposal in principle but before we begin to implement it, we want to consider whether the gateway’s remit should extend further.  Should it for example have a role in supporting prospective adopters to hold local authorities, voluntary agencies and consortia to account for the quality of their service?  Should it be linked to the Adoption Register – the other national element in what is primarily a local system?  Should we seek to encourage all prospective adopters to use it as a first point of contact to ensure it has a comprehensive national picture of the supply of adopters? We will explore these questions and others, with the help of the Working Group, in order to develop a final proposal in time for the summer children in care publication.  We welcome the proposal for a customer service charter and we have asked the WorkingGroup to develop its contents, as we consider the proposal for a national adoption gateway

There’s also discussion of an “adopter’s passport” which will be a transparent guarantee of the support adopters will get – sounds very sensible (silent as to whether there will be more funds for adoption support, and silence speaks volumes, as we all know)

The adoption scorecard  (this is where the ghosts of Tony Blair and John Major’s cones hotline came in and rested cold skeletal hands on my shoulder, but I don’t think it is necessarily as bad as the truly awful name suggests – it might actually be a way of getting some quality information as to where the problems exist so that they can be targeted – and I mean where in the system more than where in the country)

A new adoption scorecard
94.All of this will make a difference, but we need to go further if we are to get the system from where it is now to where it needs to be to best serve children in need of adoption.
95.Generally, the Government does not believe in managing the performance of local authorities from the centre by reference to a large and comprehensive set of targets and indicators. In most circumstances, we think it is more effective for local authorities to be held accountable by their local residents through democratic means.  However, where necessary, we continue to take action ourselves to ensure adequate services are provided to the vulnerable. Looked after children are amongst the most vulnerable people in our society and they are not in a strong position to hold the local authority – who acts as their parent – to account.  It is clear that the current inspection and accountability frameworks have not secured the improvements needed to maximise their chances of being placed quickly in a safe and loving home.
96.At present, all but a small handful of local authorities fail on average to meet the timescales that statutory guidance sets out for the different parts of the assessment process.  And there is huge variation between local authorities.  Large numbers of them fall short by a significant margin, with the very slowest local authorities taking an average of nearly three years for a child to go from entering care to being placed for adoption.  As this Action Plan has made clear there are a variety of reasons for this, but for the sake of children whose best future depends on timely adoption, we need to increase the focus of the adoption system on eradicating unnecessary delay.
97.In the coming weeks, the Government will therefore publish new adoption scorecards for each local authority, which will then be updated annually when new data become available.  The scorecards will highlight key indicators for how swiftly local authorities place children in need of adoption and how swiftly they and adoption agencies deal with prospective adopters.  They will allow local authorities and other adoption agencies to monitor their own performance and compare it with that of others.  Because comprehensive national data on timeliness for prospective adopters will not be available until autumn 2014, the scorecard will focus initially on local authorities and the adoption process for children.  In the interim, we will assess the timeliness of the prospective adopter’s journey in a cross-section of adoption agencies as they prepare to implement
the new training and assessment process. From 2014, the scorecards will include data on prospective adopters and will be published for all adoption agencies so that they can
compare their performance in relation to timeliness with each other (see figure 1 below).

98.The first key indicator will relate to the overall experience of a child who is adopted. It will measure the average time it takes for a child who goes on to be adopted from enteringcare to moving in with his or her adoptive family.  The local authority leads this process, working with the child, the birth parents and the prospective adopters, but they share the responsibility for parts of this process with the other agencies in the family justice system,  including the courts and Cafcass.  Where this indicator signals weaknesses in the family justice system in a local area, this will be tackled both through the work of the Family Justice Board at national level and the Local Family Justice Operational Boards.
99.The second key indicator will look at the same period, but identify the proportion of  children who wait longer for adoption than they should.  It will help ensure the scorecard takes account of children still waiting, as well as those who have already been adopted – and allow us to act quickly if a large number of children seem to be stuck in the system in a particular local area.
100. The third key indicator will test the speed and effectiveness of family-finding.  It will measure the average time it takes for a local authority to match a child to an adoptive family once the court has formally decided that adoption is the best option.  Family finding is a part of the adoption process which is the sole responsibility of the local authority so this indicator will always give an undiluted picture of their performance.  We will measure the time it takes to match a child, rather than for the child to move in with their new family because we recognise that a smooth introductory phase is vital and will be different for each child. As we set out in chapter one, family-finding should begin as soon as a child is identified as needing adoption, and run in parallel with other parts of the adoption process. In many cases, prospective adopters should be ready and waiting
for the child when the placement order is made.
102. The introduction of the scorecard does not mean that we are asking adoption agencies to focus on the timeliness of adoption to the exclusion of everything else that makes a difference to a child’s adoption.  It is designed to incentivise the adoption system to give timeliness greater attention than it previously has.  We don’t want it to distort local authority decisions about whether adoption is the best option for children, for example by discouraging them from placing some children for adoption – such as older children, those in sibling groups or those with complex needs.  Both the Department, in looking at local authority performance in relation to the scorecards, and Ofsted in their inspections, will take account of and give credit to local authority efforts to place childrenfor whom it is difficult to find a family.  We will therefore include amongst the additional
information the numbers of older children being adopted, and the numbers of children where the local authority initially decides adoption is the best option, but revisits and changes that decision before the child is adopted

The overall target – there’s a recognition that one can’t make immediate dramatic transformations, and it is more stepped

. Initially, our performance threshold for the child’s journey overall will be twenty one months.  Within four years, it will be fourteen months. The threshold for the family finding indicator will be seven months initially, moving down to four months within four years. We will keep these thresholds under review as we develop and implement the changes to the adoption system set out in this Action Plan and elsewhere.  Achieving this level of transformation will help protect thousands of children from the harm associated with delay and instability

What’s at the end of the stick, Vic ?   (as usual, it is Ofsted, the paragon of good practice everywhere. Sorry, my SARCASMLOCK button got pressed accidentally there) Note the really big stick in my italics at the end.

105. In line with our general approach to local government, we expect the sector to lead efforts to ensure local authorities and the family justice system improve in line with these minimum expectations through its own improvement mechanisms.  However, given the vulnerability of these children and the current levels of under performance, central Government can and will intervene where necessary.  The indicators alone do not give a full and authoritative picture of local authority performance so there will be no automatic link between the performance thresholds and intervention. Where local authorities are below one or both of the thresholds, we will look at further information from the performance tables and from Ofsted reports to get a fuller sense of the results they achieve for the children in their care. We will, for example, look at whether poorperformance against the indicators reflects the complex needs of the children being placed for adoption, as opposed to failings in the local authority’s family finding.  We will also consider to what extent a local authority’s performance is already showing signs of improvement, even if the threshold has not yet been met.  Where this exercise substantiates performance concerns triggered by the scorecard indicator, we will have conversations with local authorities about their performance. Ultimately, we will consider where we may need to intervene in order to ensure that local authorities are providing an adequate service to children in need of adoption.
106. Where we need to intervene in the interests of children, we will use improvementnotices to require authorities to take specific action to improve their performance within set timescales. Where performance remains poor and the evidence suggests an authority will be unable to improve its own performance sufficiently, we will not hesitate to use our statutory powers of intervention.  This might involve, for example, directing local authorities to outsource all or part of their adoption service to another higher performing local authority or voluntary adoption agency with a strong record

My overall impressions – not as bad as I had feared – the document has clearly had input from people who have actually had something to do with adoption, rather than being a top-down this is what the Daily Mail will like hatchet job, and whilst I don’t necessarily embrace all of how they want to achieve their goals, the goals themselves are laudable. This reads to me like a genuine attempt to address problems, rather than the Politicians Syllogism  (1. We must do SOMETHING. 2. THIS is SOMETHING. 3. Therefore we must do THIS)

who assesses the assessors?

Always nice to get a little Alan Moore / Juvenal nod into the title if you can.

The Family Justice Council report on the quality of expert psychologists used in care proceedings (as trailed on Channel 4 news) is up .

You can find it at http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf

They looked at 126 reports from 3 courts, and used four independent assessors to judge the quality of the reports, both against the guidance of the CPR and a piece of American caselaw (which I have to confess was unfamiliar with me until today) giving guidance on the construction of expert reports and their own views as to the quality of the report. They found, as you may have heard, that :-

 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 maintained clinical practice external to the provision of expert  witness  work.   Two thirds  of  the  reports reviewed were rated as “poor” or  “very poor”, with one third between good and excellent.

Without wishing to be unkind, my preliminary view is that they’d obviously got  a particularly strong batch. I have found most psychological reports to be a blend of regurgitation of information already found elsewhere, a statement of the bleeding obvious, recommendations plucked from thin air and if you’re particularly lucky a hefty dose of God Complex thrown into the mix.   [I would add, however, that if you get a really good psychological report, it sings, and makes the gulf in quality even more visible. I've got a few psychologists, who are always snowed under and have huge timescales, but always, without fail produce a report that adds something worthwhile to the process. Sadly, their numbers are dwarfed by the people who tell you very little, and take 160 pages to do it]

Here are some of the particular issues that the report considers have been problematic with psychological assessments : -

Research has identified a range of criticisms of psychological reports in general.  These  include occasions where:
Psychological evidence has been presented as scientific fact when in fact it is speculation and conjecture 

There has been an absence of psychological theory;


Evidence has been provided concerning concepts which are not accepted within the field and have not been demonstrated empirically.  At times this has had a negative
impact on the outcomes of proceedings (e.g. with one of the most heavily criticized concepts being that of „recovered memory‟)

There has been a failure to provide evidence which is outside the knowledge of the typical judge or juror  

Psychometric evidence has been submitted as scientific fact when it does not meet the criteria for this (e.g. Daubert criterion).  Rather the evidence  has represented
specialised knowledge at most, with some submitted psychometric evidence based on research and not clinical assessment tools

An over-use of psychometrics, not all of which are applicable to the case being assessed.  Over-use of jargon and speculation, with poor content and style and a
failure to include the data from where inferences are drawn 

The credibility of the source has not been included, with no attempt  made  to evaluate the reliability and validity of the methods used to collect data

Psychological risk assessments have focused on first and second generation approaches (e.g. unstructured clinical and actuarial) as opposed to the more reliable
and valid third generation approaches (structured clinical, with or without actuarial anchoring)

Allegations have been reported as facts

Emotive terms have been applied where these could prejudice a decision

They found that 29% of the reports provided insufficient facts and moved ahead to a conclusion. That 22% had significant missing data but still expressed a conclusion.

To illustrate examples concerning missing data, these are as follows:
- Reports on more than one child which failed to include the data on all children but still cited an opinion on all the children;
- Reports drawing conclusions which have not been mentioned in the report, as noted by one reviewer: “Indicates in conclusion that any individuals assessing this
client should be knowledgeable of Aspergers type characteristics and the impactof this on parenting.  This was never mentioned in the report, or assessed, and
appeared as the last sentence” [rater comment].
- Reports where opinions are presented where data was completely absent, i.e.  “Comments on self-esteem, emotional loneliness, perspective taking, sexual risk,
but include no data” [rater comment].
- Reports where the data is completely missed, “Does not include fact section  –goes straight to opinion” or “cites psychometrics but no scores” [rater comment].17
- Report citing opinion without conducting a formal assessment, “stated that client presented as being of average intelligence without deficits in comprehension or
expression, formal intelligence testing was not undertaken” [rater comment].  
Further examples were:  “he seemed, at times, to be quite a jumpy person with arousal levels higher than an average baseline.  No assessment completed of this”
and “did not assess for personality and yet draws opinion on it”.
- Refers to the opinion of another as their opinion, “Refers to someone else‟s report in response to an instructed question” [rater comment].

Ouch.

They then considered the conclusions against the main body of the report  (a particular bugbear of mine, since if you can’t tell why the conclusions have been reached, how is any professional supposed to explain to their respective client why the expert is with them or against them, and whether they should shift their own position?)
Specific background missing/unclear (1). 34.0 %
Limited opinion (2). 17.0 %
Opinion confused or not clearly explained (3) 17.0 %
No background, just opinion (4) 9.4 %
Some opinions, not linked to factors  (4) 9.4 %
Opinions not substantiated (6) 7.5 %
Questions not answered (7). 3.8 %
No opinion (8). 1.9 %

Okay, the “no opinion” at all has a pretty low score, but that probably still represents from that pool five families who waited for three or four months for a psychologist to help decisions about their future to be made and who got nothing more than an expensive Scooby Doo report  (shrug of shoulders, “I-dunno”)

They found that 60% of the reports had missed the requirements of the CPR for an expert report.

They give some examples of the expert straying into areas reserved for the Judge (I point this out, because in general I agree with the report, but I think the example given here is quite badly flawed and rather weakens some of the other criticisms  –  “I am of the view that these children have all suffered significant harm”   – the ultimate decision on that is of course for the Judge, but there are many, many times when an opinion from the expert as to that is helpful, and generally it is provided as an answer to one of the questions. That, I think highlights the difference between the reports commissioned under the CPR for civil matters and for children matters – the expert is there to help the Court with specialised expertise rather than as a ‘gun for hire’ as happens/happened in civil cases. )

But the report isn’t just a woe-is-me hatchet job, it does go on to make some recommendations. They are worth reading in full, but these are the ones that I considered to be very important

 That instruction of experts should be restricted to those currently engaged in practice which is not solely limited to the provision of court reports.  Only
approximately one tenth of the instructed experts were engaged in practice outside of court work.  This is not in keeping with the expectation of an “expert” as a
senior professional engaged in current practice, suggesting that courts are accessing those whose profession is now solely as an “expert witness”.   There
should be an expectation that  psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies
(e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate  continued practice within the areas that they are  assessing (e.g. treatment
provision).   This is a means of ensuring they remain up to date in their practice, are engaging in work  other  than assessment, and are receiving supervision for
their wider work as psychologists.  Connected to this, courts should be wary of experts claiming to complete excessive amounts of independent expert work.

 That the instruction is clearly for the expert to conduct all aspects of the work and not graduate psychologists or assistants.  Such individuals are not qualified with
the term „graduate psychologist‟ used to describe those who have completed approximately one third of the required training (e.g. an undergraduate degree in
psychology and nothing more).  There was evidence of their over-use by experts,who were relying on them in some instances to review collateral information and
interview clients.  Courts should only be paying for the expert witness to complete all aspects of the report


Care should be taken with the use of psychometrics and these should not unduly  influence final judgments.   The current research indicated a wide range of such
assessments being used and not all relevant or up to date.  If tests are utilised then experts should be providing  courts with sufficient information to allow them to
judge their quality.  Using the Daubert criteria as a reference for this would assist with the quality of this information (e.g. provision of error rates, evidence of the
theory or method the test was based on), and assist courts to judge how it should be admitted as evidence.

A need for psychologists to provide provisional opinion and alternative opinions.  

The data from which opinions are drawn needs to be clearly indicated to the court.

The use of tested and/or generally accepted psychological theory to support core findings.    Courts are paying for  psychological assessments and this should be
evidenced to distinguish the opinions from those provided by other disciplines

(Hallelujah to that last one.)

The report doesn’t really get into the other side of the coin, which is – are we asking psychologists routinely to assess parents when it is not the right sort of assessment? When I started, psychological assessments were confined to cases where there was some unusual feature or behaviour and the professionals simply couldn’t understand fully and called in a psychologist to advise on that aspect  (I would add that the professionals at that time would have generally been a social worker very skilled and experienced at assessing families rather than a ‘commissioner of assessments’ and an old-school guardian whose role was to dig into the LA work with the family and see if things ought to have been, or could have been, done differently).  Now, a psychological assessment is routinely considered in neglect cases, where common sense tells everyone concerned that the problems are either motivation, lack of comprehension of what is needed to run a family in a non-chaotic way, or exposure as a child to poor parenting and thus no internal models of how to parent.

We go to psychologists when a social work assessment is what is needed. It is one of my main bugbears with both the Family Justice Review and the LSC cost-caps, that the ISW reports which are independent, swift, cost-effective and actually genuinely informative are sneered at and undermined and costs slashed to the point of extinction, whereas the bloated and we see often of varied benefit escape that exercise.

Rant over !

The Banality (and relative rarity) of evil

I suppose if you asked a member of the public whether evil was to be found in any of these groups :- politicians, estate agents, journalists, people who abuse children and lawyers; once you got past the obvious barbed remarks, there would be a consensus that there is one group where you might actually expect to find it, not just in the worst outliers of that group but diffused throughout.

I haven’t ever kept numbers, but I think I’ve probably done over three hundred care cases over my long and undistinguished career.  And I would say that I have come across more evil than the average person, but substantially less than you might expect, given that every single one of those cases has involved a parent subject to at least a suspicious of harming harmed (or doing something that would cause a risk of harm) to their child.  Of course, some of them are exonerated by the enquiry and either did nothing wrong (the suspicious-looking injury turned out to be an accident, the unpleasant allegation turns out to be fabricated, the evidence of neglect turning out to be something more akin to an evidence that different people have different standards), but that doesn’t account for all that many of the cases – probably 20 or so?

The vast majority of the cases I’ve been involved in – for Local Authorities and parents, have been with people who had changes they needed to make in their life, because they’d taken a wrong turn – whether that be drugs, alcohol, inability to cope, depression or in Wodehouse’s lovely expression “Mistaking it for a peach, having picked instead a lemon in the garden of love”.  Some of those people, when shown that the wrong turn was having an effect on their children they hadn’t realised are able to turn back, most want to and try their best but aren’t able to and some think that they don’t really have to make the choices between their children and something else that professionals are telling them they have to. Like the famous advertising maxim  “Fifty per cent of the money we spend on advertising is wasted, we just don’t know which half”,  you can never be sure of which family that resources and attention are being thrown at will respond, which of them will try but fall short, and which of them won’t really give their all thinking that they can have it all.

But actual evil?  Pretty rare. I would say that I have worked with probably 3 evil people in those 300, which, given that we are drawing from a group of people who had harmed, or were suspected of harming children is a tiny proportion. I have worked with more people who have brought about the deaths of children than I have evil parents.

I once visited a client, who I shan’t name, but had murdered some children; and whilst seeing her, was less than twenty feet away from Myra Hindley, who I think most people might come up with if trying to name a truly evil woman. She wasn’t platinum-blonde, defiant-eyed and black-lipsticked. In fact both of these two women would not have looked out of place in a mobile library. And that made me think of the banality of evil concept – that most people who do truly monstrous things are not necessarily what we in our head think of as being abominations, but are instead shockingly normal.

The Press never seem to get this – as we can see in the last year’s press coverage of the murder of Jo Yeates, it was felt acceptable to smear, vilify and identify a man as the likely killer for not much more than him having a distinctive physical appearance that the Press felt snapped closely into the model that they had in their head of what a killer would look like. They were utterly wrong, and nearly destroyed a man in the process, because he had unorthodox hair…

This whole disconnection between what people who do terrible things look and act like, and what we (persuaded by culture) think they look and act like, causes problems in care proceedings all the time. When we all know that paedophiles look like dirty old men in macs and that they would leap on a child and abuse them the second they got the chance, small wonder that vulnerable women faced with someone who looks like a regular person and who is kind to them, loving to them, and ‘wouldn’t hurt a fly’ and aren’t presenting like a slavering wolf drooling at the prospect of getting at the children find it hard to believe that the person they know could have done the things in the past that they’ve been accused of.  If we equate in the media all people who do awful things to children (and heaven knows I’m not defending the actions) as monsters, it’s no surprise that vulnerable mothers just think to themselves “If he had done those things he was accused of, he’d be a monster. I know him and he’s not a monster. So he’s been wrongly accused”

Do you think I was born yesterday?

 

 

 

A headlong rush through some of the key authorities on establishing whether a young person is young enough to receive services from a Local Authority

These cases chiefly involve unaccompanied asylum seekers, because they are a debate about whether the young person in question is under eighteen at the time they present to a Local Authority requesting either support under section 17 of the Children Act or accommodation under section 20 of the Act, AND there being a dispute about whether the young person is under 18 or over 18  – UK or European nationals tend to have documentation which will establish that age beyond doubt, whereas it is common practice for unaccompanied asylum-seekers to either not have such documentation, or to have destroyed it (in order to make it harder to establish where they should be sent back to)

Sadly for anyone trying to remember these cases, nearly all of the case names involve Croydon   (alternatively, if one is trying to bluff their way through a conversation about age-assessment cases, saying “of course, the Croydon case deals with this point” is a sensible tactic)

Our starting point is with R (on the application of B) v MERTON LONDON BOROUGH COUNCIL (2003)

[2003] EWHC 1689 (Admin)

QBD (Admin) (Stanley Burnton J) 14/07/2003

Which creates for us the eponymous “Merton” assessment,  and the Court indicating that there had to be a solid evidence-based and documented assessment by the Local Authority of how they had calculated the age of the young person, and what factors they had taken into account

HELD: (1) Where it was obvious that a person was under or over 18 years old there would normally be no need for an extended inquiry into their age. However, where, as in B’s case, a UASC could not provide any reliable documentary evidence to support his claim to be a minor, the determination of his age depended on the credibility of the history given, his physical appearance and his behaviour, factors which all interconnected. There was no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. (2) It would be naive to assume that a UASC was unaware of the advantages of being classified as a child. A lack of travel documentation, including a passport, may justify suspicion, particularly where he claimed to have entered the country overtly in circumstances, for example through an airport, where a passport would be required. The matter could be determined informally, provided that minimum standards of inquiry and fairness were ensured. The decision-maker had to seek to elicit the general background of the UASC, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. A decision-maker would have to ask questions to assess a UASC’s credibility where there was reason to doubt it. It was not useful to apply notions of a burden of proof to the assessment. (3) A local authority’s social services department should not merely adopt a decision made by the Home Office, although it could take into account information obtained by the Home Office. (4) Merton had made its own assessment as to B’s age and not solely relied on the Home Office’s stance. The decision-maker’s reasons were inconsistent with the decision letter. However, it was permissible for the court to consider those reasons (Nash v Chelsea College of Art & Design (2001) EWHC 538). The evidence before the court represented the true basis of the decision and those reasons were adequate. A UASC was entitled to know the true reasons for an age assessment decision so that he could make an informed decision on whether to ask a local authority to review the decision or to make a complaint. The reasons did not need to be long or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on the inconsistencies in his history which had made the decision-maker doubt his credibility. (5) The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this. Some cases would require more inquiry than others. The court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly: it was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report. Nor was it necessary for a local authority to support a UASC for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. It was greatly preferable for an interpreter to be physically present in an interview. Verbatim notes of an interview were also useful, although not essential as a matter of law. Such notes did not have to be counter-signed by a UASC. Procedural fairness required that a decision-maker explain the purpose of the interview to a UASC. (6) If a decision-maker formed the preliminary view that a UASC was lying about his age, he had to be given an opportunity to address the issues that led to that view (R (on the application of Q) v Secretary of State for the Home Department (2003) EWCA Civ 364). The decision-maker had failed to give B such an opportunity. Merton failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure; moreover, any complaint under s.26 of the 1989 Act would have been too slow for a child without accommodation or support. Therefore Merton’s decision had to be set aside and Merton had to reassess B’s age.

I note, with grim interest, this part of the Merton decision… “The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this” sadly, this is a custom more honoured in the breach than the observance.

There were other cases prior to Merton, but this was the big one, where the Courts made a solid attempt to get to grip with the issue of young persons asking for services and Local Authorities refusing on the basis that they appeared to be older than the group who were entitled to such services.

If the Courts felt that Merton  (do a good Merton assessment, make your decision, and it won’t be judicially reviewed) would put an end to the flood of judicial review challenges, on age assessments, they were sadly wrong.

There was litigation about medical evidence, about whether medical evidence was of any use at all, about whether the Local Authority had given enough weight to the medical evidence even though it was fundamentally not of assistance (there being finally acceptance that when deciding if a young person is 17 or 19, a medical test that is only accurate to within 2 years doesn’t help  – if one ever needs to argue this, R v Croydon –of course, helps R (on the application of R) v CROYDON LONDON BOROUGH COUNCIL (2011)[2011] EWHC 1473 (Admin) QBD (Admin) (Kenneth Parker J) 14/06/2011), and every single inch of the Merton assessments as lawyers nobly representing young persons sought to establish that the LA decision not to provide their client with services was “Wednesbury unreasonable”

There then came the decision of the Supreme Court, which knocked on the head any talk of ‘unreasonableness’ and judicial review, and determined that if there was a dispute between the LA and the young person about their age, this was a decision to be made by the Court.   (This had the, one hopes, inadvertent effect of massively expanding the number of potential cases, since one no longer had to show the Court that there was reason to believe the LA had been unreasonable in their age assessment, but just that the young person disagreed with it)

R (on the application of A) v LONDON BOROUGH OF CROYDON (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) : R (on the application of M) v LONDON BOROUGH OF LAMBETH (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) (2009)

HELD: (1) In s.17(10) a clear distinction was drawn between whether a person was a “child” and whether that child should be “taken to be” in need within the meaning of the Act. That suggested that they were two different kinds of question. “Taken to be” imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts. But the word “child” was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. It admitted only one answer. As stated by Scarman L; where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied, R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 considered. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. (2) (Obiter) Those conclusions made it unnecessary to come to any firm view on the application of art.6 to decisions under s.20(1) of the Act. The House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430 had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right, but no Strasbourg case had yet gone so far, Begum considered. In the instant case, the court was reluctant to accept, unless driven by Strasbourg authority to do so, that art.6 required the judicialisation of claims to welfare services of the kind in M and X’s case. If the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of art.6, Tsfayo v United Kingdom (Admissibility) (60860/00) (2004) 39 E.H.R.R. SE22 considered.

[It is worth noting that the Supreme Court also went on to determine that a person seeking a challenge to the LA about accommodating them did not trigger article 6 of the Human Rights Act – at the time, this was probably academic, but now that the free legal advice provisions that enabled all of this litigation to be brought may vanish, it becomes more relevant. ]

It is settled law that when approaching this task, the Court is not bound by any decision of other tribunals as to their resolution of age-assessment conflict, though they may take them into account

R (on the application of PM) v HERTFORDSHIRE COUNTY COUNCIL (2010)

[2010] EWHC 2056 (Admin)

QBD (Admin) (Hickinbottom J) 04/08/2010

A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker’s asylum appeal.

The approach to be followed

 

Mr Justice Holman was the first judge to really grapple and set some guidance for the brave new world of Judges no longer just deciding whether the LA had behaved unreasonably, but actually deciding how old the young person in question was.  [Note that Mr Justice Holman ruled that the medical evidence was admissible into the fact-finding hearing, notwithstanding the earlier criticisms of it in the Croydon case referred to above, and also that he considered the cases to still run on a judicial review model, with permission being required]

R (on the application of F) v LEWISHAM LBC : R (on the application of D) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interested Party) : R (on the application of Z) v GREENWICH LBC : R (on the application of C) v CROYDON LBC : R (on the application of S) v SOUTHWARK LBC (2009)

[2009] EWHC 3542 (Admin)

QBD (Admin) (Holman J) 17/12/2009

HELD: (1) The approach to disputed age cases had been clarified by the Supreme Court. There still had to be an assessment by the local authority; judicial review was the appropriate mechanism and remedy for any challenge to that assessment and on any judicial review the essential issue was one of pure fact for the court, Lambeth LBC followed. The instant cases would be listed for a fact-finding hearing to determine whether, on the relevant date, C were children and if so, their date of birth. Once the court was required to engage on determination of whether a person was, on the relevant date, a child, it had to go on to make its own determination as to actual age or date of birth. (2) Proceedings such as the instant cases remained firmly proceedings for judicial review. Accordingly, permission was required before the claim could proceed. The relevant test for the grant of permission where the person had been assessed as over 18 years of age on the relevant date was whether there was a realistic prospect that at a substantive fact-finding hearing the court would reach a relevant conclusion that the person was of a younger age than that assessed by the local authority and was on the relevant date a child. Where a local authority had assessed the person as under 18 years of age on the relevant date, the test was whether there was a realistic prospect that the court would conclude that the person was of a younger age than that assessment. (3) The standard of proof in all such cases was the ordinary civil standard of the balance of probability. As to the question of where the evidential burden lay, that was entirely a matter for the judge at a final hearing and might depend on the facts and circumstances of individual cases. (4) If local authorities wished to defend cases by reliance on assessments of their social workers, then they had to produce those social workers for cross-examination if required. (5) Fact-finding hearings could not ordinarily take place without some involvement of the claimant and the engagement of the claimant with the court as, in most if not all cases, there was some issue as to the credibility of the claimant and the account that he or she had given regarding their history. However, the extent to which, and manner in which, a claimant participated or gave evidence was quintessentially a matter for the judge. (6) A major issue in such cases had been whether a decision of the local authority not to take into account medical evidence rendered the underlying decision regarding age assessment vulnerable to judicial review. There was nothing in the judgment of Collins J to indicate that such medical evidence was so unreliable or so unhelpful that it could simply be ignored altogether. The evolution of the approach to be taken indicated that such medical reports could not be disregarded by local authorities or by the court, Croydon LBC considered. Therefore, in the instant cases in which there was already such evidence, that evidence could be admitted into the proceedings and relied on.

Mr Justice Garnham QC developed this practical guidance further, in that the Court was not obliged to nail their colours to the mast on a firm date of birth, but rather to assess what was the most likely of a range of dates proferred.

R (on the application of N) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 862 (Admin)

QBD (Admin) (Neil Garnham QC) 16/03/2011

HELD: (1) A declaration as to a person’s date of birth could not be granted as a matter of course, especially in circumstances such as in the instant case where the declaration had potential effects on third parties who were not before the court, including the Home Office. Such a declaration would only be appropriate after careful consideration of the evidence. A court had to exercise an original jurisdiction and determine the precedent fact of whether the claimant was a child, and if so, his date of birth, for which the standard of proof was the ordinary civil standard of a balanced probability, R. (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 W.L.R. 2557 followed and R. (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 F.L.R. 1463 applied. A court faced with such a question was not considering whether it had been shown on the balance of probabilities that a particular date was the true date of birth, but making an assessment of the most likely date of birth after comparing a wide potential range of dates, MC v Liverpool City Council [2010] EWHC 2211 (Admin), [2011] 1 F.L.R. 728 applied. Where all other factors were equal, the date might well be the middle of the appropriate range, because proximity to error increased towards the extreme ends of the range (see paras 2-5, 9, 35 of judgment).

Burden of proof

There had been some debate about whether the burden of proof was on the young person (since they were claiming to be a child and entitled to services) or the Local Authority (since they were claiming that the young person in question was not entitled to the services)

The Court of Appeal determined last year in R (on the application of CJ (BY HIS LITIGATION FRIEND SW)) v CARDIFF COUNTY COUNCIL (2011)

[2011] EWCA Civ 1590   that the burden of proof was not on the young person to prove that they were under 18, reversing the decision that had been made in the High Court on the same case.

The High Court’s supervision of the exercise of jurisdiction by an inferior court, tribunal or public body was not an issue which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the 1989 Act was inquisitorial and to speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Once the court was invited to make a decision on jurisdictional fact, it could do no more than apply the balance of probability to the issue. A distinction needed to be made between a legal burden of proof and the sympathetic assessment of evidence. In evaluating the evidence it might well be appropriate to expect conclusive evidence from a claimant but the nature of the evaluation would depend on the particular facts of the case. Where a range of powers and duties which were exercisable dependent on the age of an individual were raised in the same proceedings, it would be highly undesirable for contradictory findings to be made as to the existence of the precedent fact. The nature of the inquiry in which the court would be engaged was itself a strong reason for departure from the common law rule which applied a burden on one or other of the parties. The court, in its inquisitorial role, had to ask whether the precedent fact existed on a balance of probability

.

[It is worth noting, however, that in the particular case, notwithstanding that the young person did not have to prove that he was under 18, the Court of Appeal agreed with the conclusion of the High Court that the young person was in fact over 18 and thus not entitled to the services he was seeking. ]

On burden of proof – the Courts have also ruled that the issue of burden of proof should only arise where the matter is so finely balanced that it was only this that would tip the balance

R (on the application of U) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 3312 (Admin)

QBD (Admin) (Judge David Pearl) 14/12/2011

HELD: When considering an age-assessment case, a judge had first to examine all of the evidence that had been presented and try to arrive at an assessment of the person’s age. Only if it was a close decision would it be necessary to resort to the burden of proof,

Is the judgment on age assessment confined to the Children Act proceedings, or broader?

 

In R (on the application of MWA) v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) BIRMINGHAM CITY COUNCIL (2011)

[2011] EWHC 3488 (admin)

QBD (Admin) (Beatson J) 21/12/2011

 

The High Court found that the young person was over 18 and agreed with the Local Authority age assessment – disagreeing with two decisions of the Asylum and Immigration Panel that he was under 18.  (This of course poses an interesting internal dilemma, since the Court’s decision is binding for the purposes of the Children Act, but the AIP for the purposes of asylum and immigration, and the young person is currently occupying a state of flux akin to Schroedinger’s cat, being simultaneously under 18 and over 18. )

 

but, hoorah! The Court has also resolved this, by indicating the cases in which it is sensible for the age-assessment decision to be binding on everyone.

 

 

R (on the application of AS (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 2091 (Admin)

QBD (Admin) (Judge Anthony Thornton QC) 25/10/2011

it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone

I have found over forty reported cases on age assessments of unaccompanied asylum seekers, and those obviously don’t include any that are resolved by a Court but don’t have any particularly interesting or novel clarifications of points of law.  That includes seventeen in 2011 and thirty since the Supreme Court ruling.

Respect my prior authoriteh !

 

“I guess one person can make a difference… but most of the time, they probably shouldn’t”   – Marge Simpson

 

I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority.  This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all”  and “the report to be filed and served by 1st April 2012″  to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”

 

 

If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”

 

Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.

 

Order :-

The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case.  In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than                (2 weeks time).  If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.

 

Skeleton

Case No: 

IN THE                                  COURT

 

IN THE MATTER OF

 

AND IN THE MATTER OF THE CHILDREN ACT 1989

 

B E T W E E N:

Applicant

-and-

 

1st Respondent

-and-

 

 

2nd Respondent

-and-

 

 

(by his/her/their Guardian)

3rd Respondent

 

_____________________________

Skeleton argument

Prepared by the Local Authority

______________________________

 

 

Brief background

 

 

Proceedings in relation to                                            were commenced on                          .  [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]

 

The concerns in the case relate to                                           as set out in the threshold document [page reference].

 

 

 

 

On [date] , the Court made the following direction relating to the instruction of an expert:-

 

 

 

 

Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority”  – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.

 

Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.

 

The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

 

 

The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.

 

 

 

The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.

 

It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.

 

This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.

 

 

 

 

Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.

 

 

 

The law

 

 

Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.

 

That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably

 

CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)

 

[2004] EWHC 2529 (Fam)

 

In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision  (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.

 

It will be noted that the LSC played an active role within that case.

 

The principles in Calderdale were revisited in

 

LAMBETH LBC v S (2005)

 

[2005] EWHC 776 (Fam)

Fam Div (Ryder J) 03/05/2005

 

Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.

 

 

Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient)  :-

 

Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents

 

Paragraph 62 : -  “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”

 

Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”

 

 

 

 

 

 

 

 

 

The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party.  There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.

 

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

(a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party

 

 

The Court must consider, in any application to vary or discharge the original order :-

 

Section 1 (1) of the Children Act 1989  “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.

 

And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

 

The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)

 

 

It is submitted as a result of all that has preceded,  that :-

 

(a)    the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)

(b)   the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs  (pace Calderdale)

(c)    The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)

(d)   The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order.  (pace rule 25.4 (4) of the Family Procedure Rules 2010)

(e)    If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989

 

And that

 

(f)    the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.

 

 

The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.

 

In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.

 

In general, the Local Authority would suggest that where Prior Authority is  refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally.  The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.

 

 

 

Three, is not the magic number

I’ve been pondering this week about an issue that seems to come up more and more. Obviously, this whole article is prefaced by the caveat that children are better off with their birth family or family members if at all possible, even if that means a lot of support going in, so the issue arises in cases where the Court is being presented with a plan by the Local Authority that a sibling group can’t go home to the birth family or extended family.

It is the vexed question of separation of siblings – how far can anyone predict whether the future desired placements will materialise, does there ever come a point at which the desired outcome of keeping a sibling group together actually becomes harmful (i.e the trade-off between them being together versus them not having stable, lasting placements but running the risk of placement breakdowns), and to what extent is the detail of the care planning for a sibling group within the control of the Court, and what happens if the Court don’t want to let go of the reins because they doubt that what has been promised will be delivered?.  I’m probably going to do a post about the official solution to the “starred care plans” issue, and whether that official solution actually works in practice  (hint, since the introduction of the IRO referring to CAFCASS, CAFCASS making an application system has been in place, CAFCASS have had 8 such requests, and issued on none of them)

But one thing kept coming to my mind, and it is that children in a sibling group of three are the most difficult in this argument. A single child, siblings don’t arise. Two children – you generally want to keep them together (although if there’s a big age difference, that can be tricky) and you stand a good chance of doing so. Four children, it is generally accepted that you’re unlikely to be able to keep them together and although you may try to find such a placement, the consensus is that it would be a beautiful and pleasant surprise if you managed it, but not something you’d be condemned for if you couldn’t. Five and over, and it is accepted that the siblings would have to be split and the debate is about how to do this.

When you have a group of three, however, there remains a disconnect between what people hope and expect  (you should be able to keep these siblings together, and you must find them a placement together, because splitting them would be terrible) and what the reality of carers searching for sibling groups of three actually are.  Even assuming your sibling group of three has no particular quirky features, no unusual cultural issues, not a high level of post placement contact being planned, they have no significant behavioural problems  (all of which assumptions are not necessarily the reality), the carers in the available pool who are looking for sibling groups of three are very limited.

A figure I saw this week suggested that currently for sibling groups of three or more, there are far, far, far more sibling groups looking for carers than there are carers looking for sibling groups.  [I was going to give the figures, but had an attack of unease about doing so - but if you're imagining that there are five sibling groups for every one carer looking for a sibling group, you're way, way overestimating the number of carers]  

That doesn’t mean that one shouldn’t try, or shouldn’t try really really hard, or that for any one of those individual sibling groups that not being placed together is anything other than a  tragedy  (having already given my caveat that this arises only if they CAN’T go home or to extended family), but it strikes me that no matter how hard one tries, no matter how fervently every professional involved scours the potential placements, not all of the sibling groups who are competing for a much, much smaller pool of carers are going to find placements together.

Even if we tripled the number of carers who want sibling groups; by some magical recruitment process, or as Gove is suggesting by dramatically reducing standards/the exhaustive bureacratic and draining process (depending on where you stand), still the vast majority of those sibling groups of three waiting to be placed together (who all professionals have determined, really really need to be together if at all possible) are going to be let down. And are we letting them down further by spending months of such a critical period in the children’s lives searching for something that has a high probability can’t be delivered?

I don’t know what the solution is. Long-term, taking action to either support families, to prop up and improve placements within the family, to get the treatment that parents who have been through the care system process badly need, or earlier intervention on the first child, so that we don’t get three children needing to be removed, with a view to massively reducing the need for large sibling groups to come before the Court. A whole different approach with foster carers – the concurrency model rolled out across the board, so that more often than not, the people fostering the children during the proceedings do so with an open mind that they would offer them a home for life, if needed? I don’t know what you would need to offer, or seek in recruitment to make concurrency foster placements the norm rather than an exception.

But we are working in a reactive system. What Government is ever going to throw millions of pounds of public money in helping parents who have heroin addictions or alcohol problems, and stand firm in front of the criticism that would come from the Daily Mail about that policy? Even if those millions would save that tenfold over time, and greatly reduce the human tragedy that ever single set of care proceedings inevitably is, no matter how well handled they are?

“You can’t handle the truth!”

(An imaginary judgment about an imaginary situation, in homage to the incomparable A P Taylor’s “Misleading cases in the common law”)

This is an application brought by X County Council under section 31 of the Children Act 1989, who seek Interim Care Orders in relation to two children, a boy who we shall call A, who is aged 7 and a girl who we shall call B who is aged 5.   The Local Authority seek orders from the Court permitting them to remove A and B from their parents and to place them in foster care. Further, as I shall consider in more detail later, the Local Authority have placed the Court and the parties on notice that should their application be granted, they would not be able to accommodate the parents wish for the children’s religion to be observed in foster care. The parents contest the application and contend that the section 31 threshold criteria are not made out, that the test established by the authorities for removal of a child is not made out, and that even if the Court were to be against them on both of those issues, that the children’s religious practices should be observed in foster care. The children’s Guardian confesses that she has found this an extremely difficult case with deeply unusual features, but on balance supports the Local Authority case.

It is common ground that these children are happy, that they are doing developmentally well, that they attend school and nursery and have positive reports from those establishments, that they are properly fed, that their home conditions are clean, tidy and with suitable toys for the children; further that they are not mistreated either physically or emotionally and that they receive good quality parenting from parents who love them very dearly. The parents shun the use of tobacco, alcohol and drugs. There are many Judges who would gaze enviously at this litany of praise for parents within care proceedings before gazing sternly at the Local Authority who placed the application before the Court.

However, this particular application does have a feature which leads the Local Authority to suspect that the children are at risk of significant harm; they accepting that there is no evidence that the children HAVE suffered significant harm to date.

The parents in this case moved to the United Kingdom from the state of Arkanas in the United States. They are both committed to their faith, which they have practiced for their entire lives, including when they were children in Arkansas.  Their faith is that of snake-handling.

The Court has heard evidence from senior figures within the Snake-Handling faith, and this evidence has been sufficient to make it plain that the faith is legitimate and recognised, albeit, as the parents concede more of the margins than of the mainstream.  The faith arises from quotations from the Bible:-

And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover. (Mark 16:17-18)

Behold, I give unto you power to tread on serpents and scorpions, and over all the power of the enemy: and nothing shall by any means hurt you. (Luke 10:19)

In terms, those who practice the snake-handling faith believe, and it is a central tenet of their belief system, that they may handle snakes and drink poison and that it will not harm them as they are protected by God.

The parents in this case have made it plain, and their evidence on this aspect was, I find, credible, that they do not indulge in the consumption of poisons; as this was not the practice in the Church where they practiced their Faith.

They were, however, candid, that their religious practice is to pray and celebrate the words of the Bible whilst handling  live snakes. They gave evidence that they undertook this ceremony several nights per week, a minimum of three times and as many as five nights per week. The ceremony and handling of the snakes would be for a minimum of ninety minutes, and could on occasion last considerably longer.

Dr Parsel, the expert herpetologist who gave helpful and invigorating evidence confirmed that some of the snakes kept by the family are venomous, and that their bite would be harmful to humans, and in rare cases if medical attention were not sought, could be fatal. She indicated that she would consider the risk of a bite having serious consequences requiring for example an overnight  hospital stay to be at around 30% and the risk of a bite being fatal (if medical attention were sought) to be at around 5% – if medical treatment were not sought for a venomous bite, the consequences would be more severe.   In relation to the non-venomous snakes, her evidence was that a bite would be painful, comparable to the bite of a medium-sized dog, but more of a ‘nip’ than something that would necessarily require medical treatment.

She freely confessed to not have any particular expertise in whether snake-handlers were immune to pain or consequence from receiving bites, but did refer the Court to documented examples of some fatalities emerging from the practice. I note, in relation to this, that the snake-handling church treats such aberrations as being evidence of a lack of genuine faith in the religion, rather than a failure of the religion itself.

She was understandably cautious about estimating the possibility of a snake inflicting such a bite, but did accept in cross-examination by those representing the parents that the risk of a bite being inflicted was considerably reduced where the persons handling the snake are respectful, gentle and not apprehensive or scared.

The medical records of both parents, in this country and those obtained from America have bourne out their account that neither of them have received medical treatment for snake bites and of course, both are here to tell the tale.

They both gave evidence to the effect that being bitten by the snake is very rare in the ceremony, and that it is not the intention of the ceremony to provoke or promote a bite from the snake. I accept the parents’ evidence in this latter regard, but am more cautious about the rarity of the occurance.

Their further evidence, that if they were to be bitten, it would have no effect as they are protected by God and their faith is something that the Court have to be more cautious about. It would probably be best expressed in this way, that the Court is satisfied that the parents genuinely believe this to be the case, that they believe this as a fundamental part of their religious faith and that they are not knowingly placing themselves in what they consider to be harm or jeopardy.

The Court further accepts the following, as drawn from the parents’ evidence:-

1)    That they would intend for the children to become involved in the religious practice, and to handle the snakes, some of which are venomous.

2)    That the older child has already, under careful supervision been involved in the handling process; but not with the venomous snakes

3)    That the younger child has observed the ceremony and worship

4)    That both of the children have been shown how to handle the snakes with care and dignity

I now have to consider whether  there is, on the balance of probabilities a likelihood that significant harm may arise. For today’s purposes, the section 38 criteria apply and the test is whether there are reasonable grounds to believe that the children have suffered or would be likely to suffer significant harm, such harm being attributable to the care given or likely to be given not being what it would be reasonable for a parent to provide.

The risk of harm, as outlined by the Local Authority is as follows :-

(a)  that there is a risk of the children sustaining a bite injury from a non-venomous snake, which would be painful, on a par with a ‘nip’ from a medium sized dog, and which would be likely to hurt a child for several minutes but not require medical attention

(b)  that there is a risk of the children sustaining a bite injury from a venomous snake. This would have the same degree of pain as above, accompanied by a feeling of nausea and light-headedness, which would probably last for an hour or two  (if the anti-venom serum were administered immediately) and might require hospital treatment.

(c)  That if the parents did not, as a result of their religious belief that the children would suffer no ill-effect, obtain medical treatment, the consequences could be much more serious and there is a risk of a fatality

(d)  The Local Authority add that although the risk of either incident occurring might be said to be low for each ceremony (though they took pains to point out that they did not necessarily accept this) the Court were entitled to take into account that exposure to a low level of risk several times per week, over the children’s minority could give rise to a cumulative risk which would perforce be higher.

The parents respond in the following way:-

(a)  the children would feel no pain from the bite of non-venomous snakes, as is clear from their faith

(b)  the children would feel no pain or ill-effects from the bite of a venomous snake, as is clear from their faith

(c)  thus, no harm would result from the children demonstrating their faith and engaging in their legitimate act of worship

They accepted wholly that a parent who were not a snake-handler and protected by their faith, who gave venomous snakes to a child, would be acting in a way that it would not be reasonable to expect from a parent; as such a child would sustain a painful injury, and I myself would not find it a stretch to make such a finding.  (They do not claim that venomous snake bites are harmless to the population at large, and if I were required to find that being bitten by a venomous snake would be generally a bad thing for the average child, I would make such a finding)

I find myself in difficult waters here. I would have no difficulty whatsoever in finding that a parent who allows a child to handle venomous snakes for long periods, on numerous occasions per week, would have a child who was at risk of significant harm.

The parents’ case is, in part, that no harm could arise, because of the protection that their faith offers them and their children.

All parties accept that there is some risk (although they differ as to the level) that the children could be bitten by a snake whilst handling it. The Local Authority say that there would be consequences if so, which would constitute significant harm, the parents say that there would be no such consequences.

To reject the parents’ conviction out of hand would draw the Court into territories of ruling that an individual’s faith is incorrect in fact.  The accepted fact that this particular religion is followed by a relatively small group, rather than having a groundswell of popular opinion does not mean that I should discount their beliefs. There might be many who would regard their beliefs as nonsense, but the same could be said of those who believe that God sent his son to earth to die for our sins.   Many generations of philosophers and theologians have grappled with these weighty issues without necessarily coming to a conclusion; and it would certainly be wrong of me to attempt to do what Aquinas, Bertrand Russell and Descartes could not and put a full stop under whether a particular religion is true or misguided.

I have had to consider whether I need, to determine, on the balance of probabilities whether the Local Authority is right (and thus that the parents faith is misplaced) or vice versa.

Looking at the law, it is clear that what I must consider, in weighing up “likelihood”  is the construction set out in Re H and R 1996  “the context shows that in section 31 (2) (a) likely is being used in the sense of 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”

With that in mind, I am able to determine, with confidence, that there is a real possibility that cannot sensibly be ignored that these children, might over cumulative exposure to snakes (some non-venomous, some venomous) be bitten by the snakes and suffer adverse harm as a result.

I do not, when determining this, need to set out that the risk of this occurring is greater than 50%, and therefore do not need to determine that the parents belief is objectively true, or objectively false, rather that there is some margin for doubt.  I am absolutely plain that I could not rule that one could be absolutely categorically certain that the children of snake-handlers would suffer no harm if they were bitten by a snake, and thus I have to accept that there is a possibility which cannot sensibly be ignored that they might be.

I further accept that the consequences of a bite could constitute significant harm if consequences were to arise, and that therefore the threshold criteria as set out in section 38 of the Children Act 1989  are made out.  I do not believe that, having made that determination, there will be a dispute as to the section 31 criteria at final hearing, the same facts coming to bear.

Turning now to the test for removal, I shall not recount the plentiful authorities, as it is common ground between all of the parties that a satisfactory construction of the test would be “is the harm, or risk of harm that the child would suffer or be at risk of suffering proportionate to the removal of the child at interlocutory stage”

I am mindful here that having effectively established that the religious practice of snake-handling gives rise, if children are participating to a likelihood of significant harm, there is a risk of developing a position whereby the Court determines that effectively all parents who are snake-handlers and wish to bring up their children in that faith are not able to safely care for their children.

That in turn, would effectively be the Court saying to a parent that they do not have the right to practice their religion AND simultaneously parent.  Whilst snake handling is a relatively small religion, practised in some forty churches, it is nonetheless a religion. I am reminded of Martin Niemoller’s famous statement “First they came for the communists….”

Considering the body of authorities where the Court have had to consider the extents to which the State can interfere with someone’s religious practices, I would distill this concept  – that any person is free to believe whatever religious principles they wish and that the State should not interfere with that belief, but that where the exercise of such beliefs has an adverse, or potentially adverse impact on the rights and freedoms of another, the State may intervene and must consider whether such intervention is necessary and proportionate.

I have attempted to apply that principle throughout this case – it is perfectly legitimate for these parents to believe that they, and their children can safely handle snakes as part of their religious practice – it is the point at which they propose that the children actually do handle snakes which leads to the Court needing to become involved. That crosses the line from belief into action.

I have obtained some useful guidance from the Court of Appeal in Re R (A minor) (Residence : Religion) 1993 2 FLR 163 where it was held that it is no part of the Court’s role to comment on the tenets, doctrines or rules or any particular section of society provided that these were legally and socially acceptable, but that the impact of tenets and rules on a child’s future welfare was one of the circumstances to be taken into account.  I have endeavoured to approach the case in that manner.

I have to consider that the parents Article 9 right to freedom of religion, would be engaged. Whilst this is a qualified right, and the Court would be entitled to prescribe those rights if it were necessary in a democratic society for the protection of the rights and freedoms of others, the Court should be reluctant to curtail someone’s religious expression.

Speaking for myself, I would feel an enormous sense of disquiet in being the Judge who set a pebble rolling down a slippery slope; whilst I cannot think at present of other religions who might effectively be outlawed to parents I would not wish to set that particular precedent.

In relation to this issue, I have had to consider whether it is possible for safeguards to put in place so that the risks to children I have ruled cannot sensibly be ignored in snake-handling can be managed, such that the child can remain with the parent and that the family can have the freedom to observe their religious practices.

I have a proposal in mind, which I shall outline, and I propose to adjourn the hearing briefly to allow the parents to consider that proposal.

I would not rule that the snake-handling faith in all circumstances is dangerous to children, but I am prepared to decide that  the snake-handling faith, where children are participating in it, requires robust safeguards to be in place in order to prevent the likelihood of significant harm that otherwise would justify the intervention of the State in removing the children to alternative accommodation.

On that basis, I indicate that I would be minded, if the parents accept the safety proposals, to make Interim Supervision Orders, and for there to be monitoring of the adherence to these safety proposals between now and final hearing. If the proposals are agreed but the Court is later presented with evidence that they have not been adhered to, the Local Authority are likely to find the Court much more amenable to the application they have made today. They would be, as the saying has it, pushing at an open door.

If however, the parents are not able to bring themselves to accept the safety proposals, then my ruling will be that the risk of harm that the children are exposed to in the absence of safety mechanisms, is such that the removal of the children is a proportionate response to dealing with it, and would be minded to make the Interim Care Orders.

In the event that I make Interim Care Orders (and I would hope not to need to)  I would not be minded to invite the Local Authority to make arrangements pursuant to section 22 (5)  (giving due consideration to the child’s religious persuasion) , being satisfied that they are extraordinarily unlikely to find foster carers who are snake-handlers or to find foster carers who are willing to allow the children to handle snakes (even in a carefully prescribed environment or regime)

This also requires me to consider s 33 (6) of the Children Act 1989  “while a care order is in force with respect to a child, the local authority designated by the order shall not – (a) cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made ‘

And it could be argued that any form of placement other than with snake-handlers would be in breach of this, even if the carers had no religious beliefs  (it is hoped that at final hearing, one would not need to cross-examine Richard Dawkins as to whether atheism or agnosticism constitutes a religious persuasion in the negative)

Thankfully, Justice Baker rides to my rescue in that regard in the case of Re A and D (Local Authority : Religious Upbringing ) 2010 1 FLR 615  involving a child who had been brought up by Muslim parents but the mother reverted to Catholicism after they separated (it being largely impossible to raise a single child as both a Muslim and a Catholic)  and the Court determining that section 33(6) is subject to the overriding duties on the Local Authority under section 22 (3) to safeguard and promote the child’s welfare when they are caring for him.

I am satisfied that it would not be reasonable to expect the Local Authority to provide the children with live exposure to snake-handling in their foster placement, though the children should be educated about their religious faith without practically carrying it out. That would be sufficient to ensure that they are not in breach with either s 22 (5) or s 33(6).  As I have said, I would hope that the issue of these children being cared for by the State does not arise.

My proposals, which I invite the parents to consider very carefully are as follows :-

  1. When handling snakes as part of their faith, the children shall not handle venomous snakes until such time as the Court can review this safety package
  2. The children shall be supervised by adults at all times
  3. In any event, the parents shall obtain anti-venom serum suitable for treatment of bites from the venomous snakes that they own
  4. The herpetologist having identified the symptoms of snake bite from the venomous snakes that the parents own, the parents shall undertake to administer that anti-venom serum immediately if they observe either of the children to be bitten by a venomous snake; or if they observe these symptoms in the children, and to seek medical attention for the children in either event
  5. This is by way of a placatory mechanism, and does not reflect adversely on the parents’ deep-seated conviction and belief that the children would be unharmed by snake bites. It is simply their recognition that the State has to manage that degree of risk that cannot safely be ignored by the Court that the children would not be unharmed by snake bites, regardless of their faith.
  6. The parents accept, as a long-term proposal, that notwithstanding their faith and conviction that the children would be unharmed by handling snakes and would not require any medical intervention, they will keep this safety net in place until such time as the children are adjudged to be competent to make informed decisions about the risks themselves [by which I would contemplate their later teenage years], or the Court rule that the safety provisions may be relaxed.

I would refer the parents to the decision of the High Court in Re W (A Minor) 25th November 1991, involving parents of a child who were Jehovah’s Witnesses and could not consent to a blood transfusion.

In that case, the order was phrased “Being Jehovah’s Witnesses, the parents do not and cannot approve the order hereinafter stated but recognise the power of the Court to direct the same and cannot therefore maintain any objection to this order”

I would ask the parents to go further in this case, but I think a preamble to the order that  “It is accepted by all parties that the parents are snake handlers and profoundly believe that they and their children would receive no harm or damage from handling snakes as part of their religious practice, but recognise the authority of the Court to make decisions about children who are deemed to be at risk of harm, and offer the following assurances to ensure that during the children’s minority, they are protected from harm that might arise from snake-handling, even if that risk is no higher than one which the Court cannot sensibly ignore”   would be a sensible resolution to the religious quandary that the parents find themselves in.

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