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Monthly Archives: August 2012

I’ve got (section) thirty seven problems, but a ***** ain’t one

 A discussion about section 37 of the Children Act 1989 and the pending appeal on  Re K (Children) [2012] EWCA Civ 1169

 

 

The case is discussed over at Family Lore, here

 

http://www.familylore.co.uk/2012/08/re-k-children-how-not-to-conduct.html

 

 

and Family Lore’s focus is on how the parents nearly messed up their very valid argument by the manner in which they presented the case.  That is a very good analysis and discussion, and I recommend checking it out.

 

I come at this from a slightly different tack, which is the novel and interesting point of law that Mr and Mrs B included in their grounds for appeal, namely that a series of ICOs were made, without an application for such being made by the Local Authority, the Court effectively making them of their own motion by using the powers under s37 and s38(1)(b) to make ICOs of the Court’s own motion.

 

 

The judgment granting permission to appeal can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1169.html

 

 

The bare facts are these.  Mrs B is the mother of two children, who the Court named “Tok” and “Tun”   (which are the most unusual pseudonyms for children I have seen in a judgment).  Tok was 15, Tun 12 ½.    The father of the child is Dr K, mum and dad are estranged. Mum remarried, and Mr B is the stepfather.

 

There have been extensive private law proceedings over about six years and at the time in question, the children had been living with Mr and Mrs B.

 

On 10th December 2010, the Court made a section 37 direction, inviting the Local Authority to prepare a report on the circumstances of the case and specifically to report as to whether it would be appropriate to initiate care proceedings (and if not, to say why not). Alongside that, the Court made an Interim Care Order.

 

This is the only situation in which a Court can make an Interim Care Order without a formal application and arises from

 

Section 38 (1) of the Children Act 1989 

 

Where –

 

(a)   in any proceedings on an application for a Care Order or Supervision Order, the proceedings are adjourned; or

(b)   the Court gives a direction under section 37(1),

 

the Court may make an Interim Care Order or an Interim Supervision Order with respect to the child concerned.

 

The purpose of that power is to enable a Court faced with private law proceedings where it appears that the child is suffering or at risk of suffering significant harm if an ICO or ISO is not made, to make one, which would be for a period of 8 weeks, which coincidentally or by design, is the timescale for the Local Authority to supply their section 37 report.

 

Mr and Mrs B refused to work with the Local Authority, and as a result, five days after the making of the ICO, the children were removed from their care.

 

Now, remember, that in making the ICO, there was no formal application before the Court, and therefore the Local Authority had not laid out to the parents the threshold criteria  (or the facts that led to concerns about significant harm)  and nor had the Court held a hearing to determine whether the legal test for removal of the children under an ICO was made out.  (It being settled law now that sanctioning separation at interim stage is more than just deciding that an Interim Care Order is the right order)

 

By 28th January 2011, the LA had determined that matters had cooled and that the children could be returned to Mr and Mrs B, and did not make any formal application for a Care or Supervision Order.

 

The Judge considered otherwise, and made another section 37 direction for the LA to report, making alongside it a further Interim Care Order, pursuant to section 38 (1) (b).  He also said that alongside that ICO, he did not sanction the children being returned to Mr and Mrs B whilst it was in force.

 

Now, this will be the nub of the appeal decision for me. I am aware that there are two schools of thought on the powers of s38(1) (b).   One (my own) is that it goes far enough to allow a Court to make an ICO or ISO whilst awaiting the Local Authority’s report and decision as to whether to issue proceedings, “to hold the ring” as it were. The other  (and one that I have seen in various County Court case and a couple of High Court cases) is that faced with a Local Authority who don’t share the Judge’s view that a section 31 application for a Care Order should be made, the Court can simply make a second and subsequent directions for further reports and further ICOs until either matters resolve or the LA see sense and issue.

 

The LA, in this particular case, changed their view to reflect the Judge’s strong views, and subsequently made an application for an ICO. But the children remained out of their care for at least some period, on the basis of a second ICO having been made, without an application, using a second s38(1) (b) order, rather than the traditional s38(1) (a) ICO on application.

 

 

 

 

The precise wording of the Act, as set out earlier, says that the Court can make an ICO alongside a direction for a section 37 report, and does not say that this can only be once, or can only be done if the LA have not reported.

 

But the obvious risk here is that rather than the application for a Care Order being prosecuted by the Local Authority, opposed by the parents, and determined by the Court, the Court is actually driving the application that it is in the position of determining.

 

It seems to me that whilst the first ICO is justifiable  (although I think it would be worth remembering that s38(2) is clear that the order can’t be made unless there are reasonable grounds to believe the threshold criteria is made out, and the Court ought to, if making an order, give a judgment as to why that is the case and why in the circumstances of the welfare checklist making an ICO is better for the child than making no order)   making subsequent ones put the Court in a dual position of seeking an ICO whilst also being the arbiter of whether one should be made.

 

I also suspect that at the appeal hearing, the Court of Appeal may be troubled by the judicial indication that when making the second ICO (that was, remember, not sought by the Local Authority) the Judge informed the Local Authority that he did not sanction them returning the children to Mr and Mrs B during that order.  That seems to me, to be a step too far.  A Court might indicate that the risks before the Court were high and that the current circumstances suggested that managing the risks with the children with Mr and Mrs B would be very difficult to achieve, but the Court has fettered here the Local Authority power to do what their stated intention was, which was to rehabilitate the children to Mr and Mrs B.

 

 

This is the basis on which the Court of Appeal granted permission for the appeal to be heard in full, although the time for appealing the ICOs was clearly long gone  (as usual, my own underlining):-

 

  1. Without expressing any concluded view as to the ultimate merit or otherwise of these matters, the points that particularly justify a full hearing are as follows:

a) Given the importance of the decision made on 10th December 2010 to make an interim care order in private law proceedings, where the local authority had on at least two previous occasions, one less than a month prior to the hearing, indicated that there were no grounds for seeking a public law order, the judgment given on that day is extremely brief and amounts to little more than an assertion that there is “really no doubt at all” that the interim threshold criteria in s 38 are met on the basis of emotional abuse, principally arising from Mr B’s bullying and intimidating behaviour. The contrary stance of the local authority indicates ground for questioning if the s 38 threshold criteria were actually met.

b) The judge’s stated justification for making an interim care order in December 2010 was to gain Mr and Mrs B’s co-operation with the local authority assessment process. Once that had been achieved in January 2011 and in the light of the local authority’s sustained assertion that there were no grounds for a further interim care order, the judge’s decision to make two subsequent fresh s 37 directions, thereby maintaining the court’s jurisdiction to make interim care orders, must be open to question.

c) In his judgment of 12th April 2011, HHJ Tyzack give a detailed account of the history to date. It is of note that, at paragraph 9, the judge summarises the social work evidence as follows:

“…up until quite recently professionals from Leicestershire County Council have been able to work with Mr and Mrs B so far as the care of Tun is concerned. Indeed Ms S’s first two statements, which are comprehensive and thorough, attest to that fact, that, despite the difficulties that Leicester have had with Mr and Mrs B in achieving their co-operation, they have been able, up until recently, to work with them so far as Tun is concerned.”

The judge then goes on to record that “all that has fallen away” following the withdrawal of co-operation pursuant to the order of 4th March. Given the judge’s conclusion that the previous social work reports were favourable to Mr and Mrs B and were “comprehensive and thorough”, the court’s grounds for nevertheless making s 37 directions at earlier hearings, in part on the basis that the social work assessment was incomplete, falls to be questioned.

d) Insofar as the threshold criteria are concerned, the 12th April 2011 judgment, in like manner to that of December 2010, does not refer to the evidence prior to those dates which would establish a factual basis for holding that there are reasonable grounds for believing that Tun is suffering, or is likely to suffer, significant harm. At paragraph 18 the judge simply says “I should say that I find the threshold criteria met, so far as this application is concerned, on a s 38 basis….”

 

 

In the permission hearing, the Court of Appeal didn’t make comment as to the other two issues I have touched on here – that the making of the first ICO allowed the children to be removed without the Court ever having determined that the risks involved were proportionate to the children being removed from home at an interlocutory stage, and whether when making the second ICO the Judge went further than he was entitled to by telling the Local Authority that the Court did not sanction the children being returned by the LA to Mr and Mrs B during the course of that order.

 

Adult safeguarding investigation

 

A discussion of Davis & Anor v West Sussex County Council 2012

 

I’m always mindful that I do much less blogging on adult social care than I would like. Child protection work is my day to day bread and butter, so that’s invariably my focus, but I do like to discuss adult social care when I can, and I’ve neglected it recently.

 

So, given a combination of insomnia and this interesting case, the opportunity arises.

 

http://www.bailii.org/ew/cases/EWHC/QB/2012/2152.html#para26

 

This was a judicial review brought by owners of an adult care home against the Local Authority’s decisions at a safeguarding case conference that 15 allegations made against staff were substantiated and 10 allegations made against staff were “inconclusive” and that the staff should be referred to the Independent Safeguarding Authority and the Nursing and Midwifery Council for possible disciplinary action. To cut to the chase, the claimants won the jr, and the decisions of that case conference were quashed.

 

So what went wrong, and how can that be avoided in the future?

The Claimants main objections to the process, all vigorously challenged by the Defendant, are that;

 

(a) They were not given adequate notice of the allegations made against them so as to allow them a fair opportunity to present their case at the Case Conference. They were only provided with a copy of the very substantial Investigation Report – which set out the allegations for the first time, albeit in unclear form – one working day before the Case Conference.(b) They were not shown the evidence against them.

(c) The Case Conference was not shown relevant evidence generated by the investigation, both for and against them.

(d) They were not permitted, or given an adequate opportunity, to produce relevant evidence to the Case Conference, whether through witnesses or otherwise.

 

and we can already see, by paragraph 3 of the judgment, that this is probably not going to end well for the Local Authority. If those objections are made out, the LA are going to lose, on the article 6 point if nothing else, but almost certainly it would be unreasonable to make determinations that affect the individual livelihoods and career of staff and the financial viability of the organisation as a whole without them having proper opportunity to defend themselves.  (I hasten to add that these claims were vigorously challenged by the Local Authority)

 

The case very helpfully sets out the statutory and binding guidance framework for conducting safeguarding investigations, and would be a useful starting point if one wanted to get to grips with what the duties and requirements are. (The joy of case law is that it often sets out all of the background knowledge in one neat place, saving you hours of leafing through separate sources or even locating what those sources might be)

 

What is interesting about this case is that of course there was a contract between the LA and the claimant for the provision of these services. The claimant ran their case largely on public law grounds  (i.e that this was an administrative decision of a public body which must be taken in a Wednesbury reasonable manner) and the LA largely on contractual grounds (i.e that the issue of investigations, cooperation with them, being bound by recommendations, dispute resolution etc were all contained in the contract, and this was a contract dispute  – and ultimately that the decision was about whether to renew the contract that existed between the Claimant and the LA)

This is interesting, at paragraph 26  (and was the part on @celticknottweet ‘s tweet that led me to dig a little deeper)

It is not the function of this court to decide whether or not abuse took place. The court is concerned with the process by which allegations were investigated. There is some disagreement about the long and complex dealings between the parties over a lengthy period and Mr McGuire QC for West Sussex places emphasis on what he describes as ‘the true factual context’.

 

So, it would not matter if the allegations had merit or substance, the JR court would not be looking at that – they would be looking at whether the process of investigation and opportunity to defend and decision-making process was fair, not whether or not the abuse alleged had taken place. The Court was not conducting a judicial determination of the allegations, merely the process.

 

On that very issue, here is the nub of the judgment  –  the case against the Claimants and their staff was produced in a 22 page report at 7pm on 8th December, for the conference on 10th December. The Claimants request for the conference to be adjourned to allow them time to consider the report and respond in writing was refused.  Two members of staff were refused admission to the conference (the Court accepted that there were legitimate reasons for this) but that decision made on the day, allowed there to be nobody present at the Conference who could speak to the day to day running of the home.  The meeting lasted for 8 hours, and there were “ten on one side and one on the other”  – the Claimant handed a solicitors letter to the Chair who declined to show it to anyone else.

    1. By the middle of 8 December nothing further had been heard from West Sussex about the conference set for 10 December and Mrs Hillary-Warnett sent a reminder to the Council which responded at 4pm confirming that the conference would proceed at 9.30 on 10 December and that a copy of the report would be hand delivered. This was received at 7pm on 8 December. It was 22 pages long alleging abuse against thirteen residents of Nyton House (five of whom had since died).

 

    1. The Claimants submit that the report is incoherent and unclear about what is being alleged against whom. The report referred to the investigations as having been ‘extensive and complex’ and it had taken seven and a half months to produce. However for much of that time the police had been the lead investigator and it had been difficult for West Sussex to carry out the necessary and important work. Of the thirteen residents identified in the report only one had been placed at Nyton House under the Contract. Every relative of a resident at Nyton House that had been questioned was positive about the quality of care provided.

 

    1. Mrs Davis’s evidence, unsurprisingly, is that she was quite unable to deal with the report in the very short time available. On 9 December the Claimants’ solicitors wrote to Mr Yong pointing out the difficulties of holding a Case Conference within the proposed timescale and proposing an adjournment for something over ten days so that Mrs Davis could consider the report and provide a written response within seven to ten days. The solicitors suggested as an alternative that ‘no expectation or pressure’ be put upon Mrs Davis at the next day’s Case Conference to respond and that she should be given the opportunity to provide a detailed written response within seven to ten days. The solicitor could not themselves have attended at such short notice.

 

    1. Mr Yong rejected both options by fax at about 6pm on 9 December.

 

    1. So Mrs Davis attended the Case Conference but took with her for support Mrs Hillary-Warnett, Ms Hillary who was the acting manager and, apparently, a Mr Fieldhouse the son of one of the residents. Mr Fieldhouse apparently soon left. Mrs Hillary-Warnett was refused admission on the basis that she was an alleged perpetrator, a decision understandable in the circumstances. Ms Hillary was also refused admission for similar reasons. So no one remained who was able to speak to day to day management issues at the home. Mrs Davis then attended the meeting alone. She was 77 years old and faced ten members of the safeguarding authorities, eight of whom were employees of West Sussex. Mrs Davis handed up her solicitors’ letter of 9 December but Ms Attwood, the chair declined to consider it or to show it to the others present.

 

    1. The meeting lasted more than 8 hours. It is unclear what documents were available to the panel. Mr McGuire emphasises the extent of the discussion at Mrs Hillary-Warnett’s interview with the police, at which all matters complained of were apparently covered. However there is nothing to suggest that the record of the interview was disclosed or discussed with the panel despite the fact that it must have been one of the factors leading the police to decide to take no action. It does not appear from the record that notes of other interviews were available to the panel either. West Sussex, surprisingly, relies on the fact that Mrs Davis did not herself at the conference ask to have the matter adjourned. But it was or should have been obvious that she wanted it adjourned because her solicitors had written to say so and Mrs Davis had reminded the meeting of the letter. Ms Attwood points to the fact that Mrs Davis started by making it clear that she was going to follow her solicitors’ advice to make no comment but then chose to go on and comment on a number of occasions. There was no indication that West Sussex saw anything amiss in relying on what this elderly lady went on to say, despite knowing of her solicitors’ advice. During the lunch break which according to Ms Attwood was ‘relaxed’ Mrs Davis made a remark to her informally. Ms Attwood “suggested … that she share these comments with other attendees when the meeting reconvened and she agreed and … repeated this statement towards the end of the meeting”. This was unfair.

 

    1. West Sussex was aware of Mrs Davis’s limited role as owner not manager of Nyton House. The chair refused an adjournment, gave Mrs Davis no proper opportunity to prepare for the meeting, refused even to consider her solicitors’ letter, continued for eight hours knowing that she was an elderly lady, where the meeting was ten on one side and one on the other and where even the informality of a brief lunch break was abused. Nevertheless conclusions were drawn about Mrs Davis’s credibility and her fitness to own a care home. These were in part based on detailed matters relating to individual carers and patients (see paragraph 18 of Ms Attwood’s statement) which West Sussex knew or should have known were outside Mrs Davis’s knowledge given the impossibility of looking into all these allegations in such an absurdly short time and its decision (for reasons which were of themselves legitimate ) to exclude from the meeting those who would have had the answers . West Sussex, as Mr McGuire put it, considered that Mrs Davis had ‘made a long series of admissions’.

 

    1. I again remind myself that the prime object of the investigation was to protect vulnerable adults and to prevent abuse not to give particular consideration to Mrs Davis. But her treatment at and around the meeting was deplorable.

 

    1. The Case Conference concluded that fourteen allegations of abuse were substantiated and ten were ‘inconclusive’. An allegation of ‘institutional abuse’ was found to substantiated based amongst other things on an ‘incestuous management and ownership structure’, an odd description of a family business. The conference imposed 45 ‘actions’ mainly on Nyton House. They also, referred, with potentially devastating professional and personal consequences, Ms Hillary, Ms Bidwell and Ms Hillary-Warnett to the ISA and NMC.

 

    1. The policy required minutes of the Case Conference and its outcomes to be sent to the Claimants within five days but these were not received within that time but delivered to the Claimants thirteen days later on 23 December with a request to respond within seven days (which would have been 31 December) shorter than the ten days permitted by the policy.

 

  1. It is not necessary for my decision for me to evaluate the quality of the decisions taken at the Case Conference but, having looked at the relevant material it seems to me that the submissions that there were serious flaws in the Defendants’ approach, for the reasons set out in paragraph 89 of Mr Purchase’s written argument, are well-founded. The object of the Case Conference was primarily to investigate allegations in the interests of protecting vulnerable adults, not to make determinations about Mrs Davis or the Case Conference and so it is understandable to a degree that West Sussex did not see the vulnerability of Mrs Davies as a concern.

 

and then this

 

52. West Sussex had started to investigate the allegations in April 2010 and, partly as a result of the police intervention, had not reached or communicated its conclusion orally until 10 December. It had not communicated its conclusions in writing until 22 December. It is hard to see how a responsible council genuinely seeking the views of the Claimants could have expected them to respond within a ludicrously short timescale set to expire on 31 December in the middle of what, for so many, is the Christmas and New Year break. In the event the council extended the deadline to 21 January 2011 and on 24 January the Claimants’ solicitors submitted a response running to 45 pages with a further eleven pages of attachments.

 

[This is the bit in the judgment, where if you're for the Local Authority, you know beyond any doubt that you have lost on the public law case, your only hope is that the Judge agrees with your primary case that this is a contractual dispute, not a public law dispute. You are probably not optimistic about the prospects of that, at this point]

 

    1. Mr Purchase contends that the decisions of the Case Conference were made in the exercise of a public function. It was attended and conducted by members of public bodies carrying out their various statutory functions and to protect residents of care homes from abuse. Those functions are controlled by governmental guidance and published local policy and do not derive from contract. The point is starkly illustrated by the fact that only one of the residents who are alleged to have been abused was placed at Nyton House by the local authority under the Contract. He submits that while there is a contractual dispute following on from the allegations of abuse and the action taken by West Sussex following the decisions at the Case Conference there is no challenge to the Defendant’s exercise of its contractual rights in stark contrast with the facts in Caerphilly (a case in which Weaver was not cited and, which Mr Purchase argues, is wrong).

 

    1. I follow the guidance given by the Court of Appeal in Supportways and Weaver. In Supportways the question was whether a review which led to the decision not to renew a contract was a public law matter. As I read the judgments an applicant for a judicial review who has a contract with the body sued must establish a relevant and sufficient nexus between the matters complained of and the alleged unlawful exercise of public law powers. The caution about permitting a public law remedy does not apply to the same extent if the issue is not, as Neuburger LJ put it, ‘fundamentally contractual in nature’. The issues here are not fundamentally contractual or, to borrow the words of Elias LJ, ‘in the nature of a private act’.

 

    1. West Sussex responded to allegations by starting an investigation under its regulatory powers which was to lead to findings of abuse of thirteen residents at Nyton House only one of whom was there under a contract with West Sussex. The original complaint led swiftly to the exercise of the contractual power of suspension about which the Claimants’ solicitors corresponded. At different points in the investigation notices were given under the Contract. The Claimants’ solicitors’ letters referred to contractual rights, as well as to those under public law but there are also letters from West Sussex indicating that the two are seen as separate matters. When the decisions now challenged were taken at the Case Conference in December 2010 Default Notices under the Contract were soon given and one of the West Sussex employees present at the conference Mr Ian McCarthney attended because his responsibilities were for management of contractual matters. But it is plain that the investigation would have been carried out whether or not a contract had been in place between the parties as would the process of conference and decision-although the actions to be taken as a result would have differed. West Sussex issued Default Notices under the contract following the case conference but this was one of a series of steps consequent upon the decisions. It seems to me that West Sussex was rightly and primarily concerned with investigating allegations of abuse under its legal powers.

 

    1. The contractual issues were ancillary. There is no direct challenge to the contract in this case. The Claimants originally sought to quash the Default Notice, a grievance for which a private law remedy was available. Their other complaints are some distance from the contract. The contractual remedies would have been inadequate because these are essentially public law claims. The decisions were not about whether or not to continue a contract or to change its terms, they were about whether or not abuse had been established and if so what the consequences would be in a number of areas, only one of which was the contract. The Claimants are trying to clear their names from what they see as unfair findings of abuse by West Sussex (but not by the other public agencies concerned) and protect their staff from what they see as unfair referrals to professional bodies. In essence these are public law not contractual concerns.

 

  1. When taken together the factors cumulatively establish sufficient public flavour, as it was put in Weaver, to make the process of investigation and decision a public function distinct from the contractual relationship. So this defence fails.

 

These investigations are hard for a Local Authority. They have a duty of care to the people placed in these homes, and once the police conclude their investigation, there is obviously a time pressure to take appropriate safeguarding action. But in a case such as this, where the police were investigating from April to December, having a meeting with only one working day for the organisation under investigation to respond to the report was always going to be problematic.  I suspect in retrospect  (a place where wisdom comes easily) there is regret in not having accepted the request to adjourn for 10 days.

With the greatest possible respect…

 

Musings on section 12 of the Contempt of Court Act 1981.

 

In the traditional down-time whilst in the Family Proceedings Court today, I was sitting near a sign. I like signs. I like to read them, and they often send my tiny brain skittering off in odd directions.

 

This one said “It is a contempt of court to wilfully insult the justices or any witness before the court, or any solicitor or counsel having business in the court, during his or her sitting or attendance in court or going to or returning from the court”

Now, obviously, I knew about it being contempt to wilfully insult the justices  (though I gratefully suppose that wilfully insulting their intelligence with some of the propositions one has to put to them as part of a case doesn’t count), but it was news to me that we advocates had this protection too.

 

So, I looked it up.  (and yes, I do have insomnia, and yes, it is 5.00am)

s12 Contempt of Court Act 1981

(1)A magistrates’ court has jurisdiction under this section to deal with any person who—
(a)wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b)wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2)In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding [F5£2,500], or both.

 

Now, frankly, I have never, ever, wilfully insulted justices or witnesses, but I’ll be damned if I would plead with clear conscience that I’ve never wilfully insulted any solicitor or counsel in the course of a court day or going back and forth from court.  Never with any malice, or intent to cause distress or harm, but that’s not a mens rea which is in the Act.  So, careful with that banter, folks. Even banter on the train journey can be contempt.

 

And that led me, in a flying leap, to the traditional legal insult of choice, which is to say that you respect someone. There’s little ruder than saying “with respect”, unless it is “with great respect” or “with the greatest possible respect to my learned friend”   – all of these things, if translated into what is intended would be the sort of language that would get you thrown out of the roughest tavern, and would be frowned on with a bunch of 14 year olds playing Call of Duty on the X-box and calling each other Noobs and Losers.

 

It’s like a little secret legal code, if not a very good one, since we all know. I don’t think anyone has ever used the ‘with respect’ card to mean what it actually appears to on its face, rather than the unspoken bristling hostility if not loathing.

 

And that leads me to the other little secret legal code that I can’t stand. Sorry if this is breaking some Magic Circle style rule, but when a lawyer says to the Court,  “I am instructed that”, or even stronger  “I am firmly instructed that”  , they are telling the Court that everything that follows is not their own view of the case, but that the client has not listened to their very sensible advice. It is a device to allow them to communicate to the Court and the other parties that the idiot is their client, not them.  A rough translation would be “I know this is crackers, but my client has ignored my advice, and I’m stuck with this case”

 

Now, the irony of communicating it in the phrase “I am instructed that”  when that is the last thing in the world that your client would actually want you to convey to the Court (and you’re sort of breaching his legal privilege there, in hinting that you’ve given him advice which he has refused) is telling.  If you leaned over to you client and said to her (or him) “I’m going to tell the Judge now that I tried to get you to see sense, but you are unreasonable and everything that follows after that is your own daft opinion and not my view, is that alright?”  do you think for a second that they would be okay with that?  I think they’d justifiably sack you.

 

If you said that sentence in French or Latin, it wouldn’t be any more reasonable, just because the client wouldn’t understand, and nor, I ‘respectfully’ suggest is it any more reasonable because you’ve put it in code that the client doesn’t understand but the other listeners do.

 

I know it is done, I know that our credibility with the Court is a valuable currency and one that we don’t want to give away lightly, but I don’t like the phrase. I’d be a liar if I said I’d never said it, but it did leave a bad taste in my mouth, and I haven’t said it for about ten years, for that reason.  Are you wilfully insulting your own client, just in code?

 

Now, can someone help me off this horse, it’s higher than I imagined?

 

 

 

On wednesdays he goes shopping, and has buttered scones for tea

A short post about C (A Child) [2012] EWCA Civ 1144 , the child who nearly but not quite went to Canada.  (yes, the title is immensely remotely linked to the story, sorry) . Title two (which will make sense in a minute), was Dylan’s “You don’t need a weather vane to know which way the child goes”

Changes of heart seem to be becoming a bit of a theme in recent weeks, with this case and the Re LB, where the Judge changed her mind after delivering a finding of fact judgment.

 http://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

This one is a private law case, and with an international (if not actually any lumberjacking) element.

http://www.familylawweek.co.uk/site.aspx?i=ed99950

A fairly easy one at first instance. Child is nearly 15, dad wants her to be returned to Canada, child wants to go, mum acquiesces, and a consent order is made. The child then decides, actually, no I don’t want to go to Canada. You can’t, as we all know, appeal a consent order, so this creates a bit of a problem. [Though see http://www.bailii.org/ew/cases/EWHC/Fam/2012/55.html for the door being opened to appeal consent orders made on fallacious grounds]

There was also, of course, the problem that there was the distinct possibility of litigation within the Canadian jurisdiction.

But it is clear that having consented on the basis that the child wanted to go, when she decided she didn’t, it caused a problem. I like this line from the judgment, and will be stealing it  “The entire foundation of the order evaporated”

The Judge at first instance was worried, when the case came back before him, considering that he lacked jurisdiction to make an order which in terms would reverse the order already made.  As was submitted, the child’s wishes and feelings were no longer cut and dried, and although there was an argument that conducting further investigation into her wishes and feelings and the right course of action might itself compound the emotional turmoil she was in, it might not be as simple as saying that she had decided not to go.

“What are Nicole’s real wishes and feelings?  Might she not shift again?  Is she perhaps something of a weather vane in relation to her future country of choice? “

The Court of Appeal effectively decided that if father was committed to pursuing his application to have the child returned to Canada, the Court could not bar that application being heard, but judicial shoulders were leaning hard on him and the mother to engage in some mediation and thrash out the issues themselves.

The Court of Appeal do seem to be adopting this course in recent months of trying to make parents take some responsibility for the impact of litigation on their children. One might cynically suggest that the Court is passing the buck in asking parents who are in litigation to sort things out themselves, but it appears to be a phenomenon which is catching on.

MacFarlane LJ – “I would particularly endorse what my Lord has said about the need for the two parents to share the decision about Nicole rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking.  The father, in particular, would be wise to step back and look at the situation that now confronts the family with the potential for contested proceedings.  Accepting, as I do for the present, Mr Turner QC’s characterisation of Nicole as being a young girl in her mid-teens who changes her mind from time to time and accepting that that might well be the case, I suspect that now that she has made her position plain as it currently is, it is not the moment for it to be met by the robust deployment of an application pursued in legal proceedings. There is surely a need for the father to consider whether that course will do more damage than good to his relationship with Nicole.  A better course may be for the parents to agree arrangements and allow Nicole, as she develops in maturity, to make up her own mind as to where she goes and if that is to Canada no doubt the father will be very pleased to renew his relationship with her there on that voluntary basis.”

On a more self-centred topic, I’m about to hit 2,000 reads for the month of August, which is very pleasing for me, and smacks my previous best month. Thank you to all of you for reading. If you do read this blog, and find it anything other than impenetrable legal waffle, I’d be enormously grateful if you could inflict it on a couple of other people you know.

Just like the underpant-stealing gnomes from South Park, I have a three stage plan.     http://en.wikipedia.org/wiki/Gnomes_%28South_Park%29

Stage 1 – write blog

Stage 2 ????

Stage 3 profit

 

[Edit  - I've realised that if you don't know that three stage internet meme, you might well think I literally meant that there's a business plan for the blog and an aspiration to profit, whereas the metaphor was intended to mean the exact opposite  - there never is a stage 2 in the gnomes plan, and nor is there in mine. I write this blog because I like writing it. I'd be lying if I didn't say that it makes me happy to know that people are reading it]

I wish I was Special, you’re so very Special (Guardians)

 

 Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

 

 

I did an SGO hearing this week, and two things struck me on it. 

 

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

 

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

 

 

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it.  [I won’t name her, but it was a fascinating issue – well, to me at least]

 

The question, in simple terms, is this :-

 

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

 

 

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact.  From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

 

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

 

 and three possible contact quantums

 

Six times per year

Two or three times per year

No direct contact or once per year

 

 

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

 

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them. 

 

 

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

 

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

 

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

 

 

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’  but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55  and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

 

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

 

Compare RE L  (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

 

With  RE R (A CHILD) (2005) [2005] EWCA Civ 1128  where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

 

In Re L – the contact order and various conditions, had been at the behest of the Local Authority,  and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

 

This is what the Court of Appeal said about that  (underlining mine)

 

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

 

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

 

 

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

 

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

 

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

 

 

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

 

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

 

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual  (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

 

[*to me, not necessarily universally]

 

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact.  But how much distance remains uncertain.

 

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it.  I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us.  Is there some part of the contact process which differs in a case of Permanence  (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

 

 

 

 

Post-script

 

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

 

I’d thought that the application would just be a straightforward section 10(9) leave application  (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from  RE G (A CHILD) (2010) [2010] EWCA Civ 300  that the Court of Appeal have ruled that it is appropriate to use the Warwickshire  test   from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084  that test being  (I’m paraphrasing, but not by much)  “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

 

Using the Warwickshire test makes it very hard, without question.  

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

You never know when it might just… Buckaroo!

 

A discussion of whether too much weight is being put on the back of North Yorkshire County Council v B 2007, and whether there is such a thing as a ‘ruling out’ hearing at interlocutory stage

 

 

 

This is a scenario that’s not that uncommon in care proceedings – all of the evidence on the parents has been collected and the professionals have taken a view on it, that view not necessarily being shared by the parents. But the case isn’t ready for final hearing and is being adjourned for 3-4 months, usually in order to test a placement with a relative.

 

[Incidentally, could we all stop using the phrase ‘a relative has come out the woodwork’ in such situations? It’s icky, and perjorative. And is a pet hate of mine. They are grandparents, or aunts, or friends, not woodlice]

 

Can the Court in those circumstances have a hearing which disposes of the parents case at interlocutory stage?

 

There’s a school of thought that you can, arising from the High Court decision in North Yorkshire County Council v B 2007   [2008 1 FLR 1645]

That case certainly provides some authority for the suggestion that the Court can deal with the parents case before the case is ready for final hearing. And let’s be fair, the cases I do are all in Courts which are bound by High Court authorities.

 

But, to borrow medical sceptic Ben Goldacre’s phrase  “I think you’ll find it’s a little bit more complicated than that”

 

What follows, like everything on my blog is my personal opinion, and not representative of anything more. But perhaps even more so than usual, because I’m never going to be in a position where my personal opinion on say Re X  (it’s a very high threshold to cross to get an EPO these days) is in conflict with the law, since that’s exactly what Re X says.

 

But my interpretation of how far you can push North Yorkshire is not decided law, and thus I might one day have to present a case where my personal views on it are set aside. Hence the lawerly caveats. Sorry.

Let’s look at the facts of North Yorkshire. 

The case was listed for an eleven day final hearing, and just before the hearing, it became apparent that the final assessment on the family carers who had slithered under the doorframe  [see how icky it is when you take the usual metaphor and slightly reword it? Stop saying ‘come out of the woodwork]  would not be ready.

 

The Judge was faced with the prospect of abandoning a hearing where eleven days had been set aside, witnesses warned etc and finding all of that time again in the future, or trying to see if something useful could be done with that hearing time. The Local Authority suggested that the Court could use the eleven days to hear mother’s case (that the children should be returned) and then have a shorter disposal hearing on appropriate order and contact at a later stage.

 

North Yorkshire sets out the Honourable Mrs Justice Black’s(as she then was) decision on the preliminary issue of whether a Court could actually conduct a hearing determining a parents case before the final hearing.

 

We do not know, as the full case was not reported, what the decision at the end of the eleven days was, but the preliminary issue was decided, and Black J concluded that it was open to the Court to conduct such a hearing.

 

 

Now, here are some important things from that judgment :-

 

  1. Mother was making a positive case (not just disputing the LA case)
  2. Mother was asserting that she was making progress and could evidence that. She was on a methadone reduction programme. She accepted she was not in an immediate position to have the child returned, but felt that was achievable in the foreseeable future
  3. The family members, who were being put forward, were not certain to have a positive full assessment – the prospects were there, but the initial viability had been negative and the placement revisited because the father received a custodial sentence removing his risk from the scene.
  4. The judgment is only permissive  – it says that the Court, could embark upon a hearing to determine the merits of mother’s case. It does not say that a Court HAS to do this in similar circumstances, nor does it set out any criteria for when it would be appropriate to do so, or when it would be wrong.

 

 

But this is the paragraph that causes me disquiet if this authority is being used as authority for a principle that parents can be ‘Ruled Out’ at interlocutory stage.

 

17. It cannot be argued, in my judgment, that decisions in care proceedings only crystallise when the Court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata or issue estoppel, in its traditional form has a limited place in family proceedings.

 

 

It is the underlined passage that causes me to believe, on a personal level, that using North Yorkshire as authority for a principle that the Court can finally dispose of a parents case at interlocutory stage simply puts more weight on its back than the case can bear.  Buckaroo!   (also Yeeee-haaa)

 

If one thinks for a moment about what one would mean by “Ruling Out”, it must surely include this :-

 

  1. That the children, if they are old enough to understand, can be told that the Court has decided that they will not go home to mummy or daddy.

 

  1. And inevitably, if they are to be told that, that mummy and daddy can’t come back to the final hearing in 3 months time and argue for the return of the children.

 

  1. And to an extent, that they are PREVENTED from doing so, as a result of the earlier decision and judgment of the Court.

 

 

[and by extension, that if the parent issued a Residence Order application shortly before the final hearing  – for which, of course, they don’t need leave as a result of s10(4), the Court would dismiss this without hearing any submissions or evidence. And I suggest that as soon as you put it in those terms, you can see that there’s no possibility of a Court doing that, no matter what judgments have gone beforehand]

 

If you don’t have those 3 things, then you have not had a Ruling Out of the parents.  What you may have had, which is legitimate, is a judicial determination of the case against the parents and the counter case, at a particular snapshot in time and a judgment as to whether, all things being equal the parents are likely to be able to overcome any deficiencies found in that judgment within the children’s timescales. 

 

But saying that the parents can produce no evidence at the later final hearing to counter that judgment – if they make sweeping changes or accelerated progress the Court will not hear them on the issue, is not only NOT expressly sanctioned by North Yorkshire, the case says quite the reverse. [IMHO]

 

I am also troubled by the concept of Ruling Out, and how it fits with the House of Lords decision in Kent County Council v G 2006

 

Thus the court’s role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order.   (paragraph 48)

 

If it is not the Court’s role to decide whether the child should return to parents, but rather, whether to grant the application made by the State  (and that must be right, because that’s where the burden of proof lies) then the Court cannot finally determine that application until final hearing/agreed final IRH.

 

 

Of course, where there is a dispute over threshold, or an interim care plan (the parent opposing the move, or level of contact) or dispute as to the expert evidence, or what the timescales for change would be, then there is some value in incorporating within that, the North Yorkshire position,  of the Court weighing up the merits of returning the child to the parent at that particular time and perhaps indicating what sort of changes would be required for the door to be opened for parents at the final hearing.   I think any and all of that is legitimate and permissable, so long as the Court is not tempted to take that additional step of ruling that the parents case is finally disposed of.

 

But a stand-alone Ruling Out hearing, is a concept that worries me. If one looks at an analogous situation of whether a separate finding of fact hearing is required,

 

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

I am not sure that the merits of what can be achieved at what I would call a North Yorkshire hearing rather than the shorthand (which I suggest is misleading) of a Ruling Out hearing, can justify it as a stand-alone hearing where no other important issues are being resolved.

 

Rant over.

 

Now, your worships, I invite you to list this matter for a “ruling out” hearing, in line with the High Court authority of North Yorkshire…

what should you do if social services steal your children?

An attempt to give some practical advice

I was reading this blog post at the always excellent Not So Big Society

http://notsobigsociety.wordpress.com/2012/07/24/child-stealing-conspiracy-theory-codswallop/ 

involving an unfortunate father who had his children removed and has reacted to this by constructing a case against Leeds City Council for genocide, which has been struck out and is now awaiting an appeal in the High Court against that striking out.

I think one can never, ever, underestimate what a profoundly awful experience having a bad time with Social Services must be. There is very little (possibly nothing, now that capital punishment no longer exists in this country) that the law can do to you that is worse than taking your children away.  And for that reason, whilst people like this are wrong and misguided, I can see why they are driven to these awful pieces of decision-making.

I’ll make no bones about it – I’m a lawyer for social workers, and I present cases in which sometimes social workers have to be asking for children to be removed and placed in care.

Sometimes, hopefully rarely, that’s the wrong thing to do. Sometimes, it is unequivocally the right thing to do. But almost universally, and far dwarfing those ‘definitely right’ or ‘definitely wrong’ cases, it is very sad.

It’s certainly not done to spite the parent, or for money, or to meet targets, or any of the other conspiracy theories; ultimately it is because a professional who is responsible in law for keeping that child safe reaches a point where they no longer feel that they can keep the child safe at home.

And you won’t believe it, but it honestly is the hope of social workers and people like me, in all but the very worst cases, that going to Court will bring about a change that will let us send the children home.

That doesn’t help, if it is your child. I understand that.

But I’m sure that what you want, if your child has been taken off you, is to get your child back.  All of the Freeman of the Land, and your law doesn’t apply to me, and all social workers are wan*ers, and shouting the odds, really, really don’t get your child back.   The success rates of all of those people who nod at Christopher Brooker’s columns and tell other parents how to fight the system is really very poor, honestly.

Other than factual determination cases, where there’s something that looks like a deliberate or non-accidental injury and the Court looks into it carefully and finds out it isn’t, in eighteen years of child protection work, I have NEVER seen a case where a parent is told by the Court, you can keep your child and you need never speak to a social worker again.

If you’re going to get your child back, social workers are going to be a part of your life.  So making social workers frightened of you, or not being able to work with you, or think that you’re a liar or unstable, isn’t going to help.

That’s not to say that you have to like them – or even be terribly nice to them. Your best approach is  “I know you’ve got a job to do, and I don’t like that you doing it has hurt my family, but I also know that I’ve got to show you that I can care for my children”

I’ve seen an awful lot of websites out there giving really really bad advice to parents in care proceedings, so I thought I’d have a crack at redressing the balance.

Here are some brief, practical, non “I’ll sue you for genocide” suggestions. Nobody can guarantee success in care proceedings, but you can make the central principle that the Court works to get children back home if at all possible work for you.  Nothing I’m suggesting here is beyond you, if you try and you ask for help when you need it.  It isn’t a guaranteed recipe of success, that’s up to you, but it certainly improves your chances.

1.  Work out a way of dealing with your social worker without shouting at them. I represented parents for a few years, and what I always told them was “you can call the social worker whatever you want in your bathroom, where nobody can hear you, but don’t say that stuff to the children, or the contact supervisors, or the social worker”    – don’t make it hard to be liked.   Being likeable doesn’t mean being a doormat, but being likeable is something you shouldn’t underestimate. It’s like chemistry.

2. All care proceedings are about giving something up. It’s unavoidable. If you hope to go into that final hearing and talk the Court into you letting you look after the children in exactly the same way as you’ve always done, you’re going to lose. Whether it is giving up drugs, alcohol, a relationship with someone violent, smacking the children, not doing housework, sleeping till two pm, you’re going to have to give up something.  Nearly all the time in court proceedings is spent with people either not accepting that they have to give something up, or pretending that they have given it up and catching them out.

If, instead, you approach it with the idea that “I want to change so that my children will be happier  or better looked after with me than they were” and try to change, you’re already in the top 5% of parents in care proceedings by that one simple decision.  And if you ask for help, and listen to the advice, you’re moving towards the top 2%.    Which means, when the Court is listening to your case, they are thinking “this mum/dad is so much better than the people we normally see”

3.  Everyone makes mistakes.  Honestly, everyone. When you make one, admit it and say that you want to learn from it, to do better in the future. Giving up things you’ve done for years isn’t easy, and you’re entitled to get help with that, and you’re allowed to say that some days it is hard, and some days you might need a bit more help than usual.

4. Turn up to all the contacts  – or at least, don’t miss contact unless you really have to, and tell people when you’re not going to come. When you’re at the contact, don’t be nasty about the foster carers to the children – the children need to know that even though you love them, it is okay for them to be with the foster carers and to like them and have a nice time.  If you can take something to contact that will be fun for the children, that goes down well. Don’t take loads of sweets and presents, some paper and crayons and spending time with the children works wonders. Get down on the floor and play with them.  Don’t promise the children bikes, or ponies, or x-boxes when they come home.  Don’t ask them to say that they love you and want to come home.

5. Nothing says “I’m a paranoid oddball who can’t be trusted” more than tape-recording every interaction you have.  It won’t be evidence anyway, and nobody will ever want to hear it. The only thing it does, is make everyone worry that you’re strange.

6. Get a good lawyer, and stay in touch with them.  There’s a balance, of course, between ringing them five times a day, and not talking to them for months at an end and not bothering to tell them that you’re back with so-and-so and pregnant.  If you tell them what’s happening, or particularly if you’re feeling like you might be about to make a big decision and you’re not sure if it is the right thing to do, they’ll be able to help you.  If they ask you to come in and see them, turn up. If they advise you to do something, it’s not because they’re mean, or nasty, it’s because they want to have the best possible chance at final hearing in getting you your children back. Give them some help.

Don’t believe any of the conspiracy nonsense that all parent lawyers are pawns of the Local Authority, or lazy or crooked;  some of them are smart, some are hardworking, some are inspirational, some work wonders – but no parent lawyer is ever, ever in the pocket of the Local Authority or doesn’t care about doing their best for you.

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