“That’s all we do, isn’t it? Look at things and try new rules?”

–         Ernest Hemingway (nearly) 

A consideration of the private members bill about Family Justice

I came across John Hemming MP’s draft family justice bill, which will be put forward as a result of him winning the ballot to put forward a Private Members Bill, and felt it was appropriate to write about it.

Not because it will necessarily become law  (very, very few Private Members Bills make it to Acts, because they don’t have the force of the parties and whips behind them)

Nor because I want to coruscate or ridicule it.

But because, at a time when Family Justice Review is dominating the thoughts and actions of professionals, it seemed to me appropriate to look at how one of the staunchest critics of the current system would want to change it. 

Just because someone has different and firm views with which I disagree  (in a nutshell, I think miscarriages of justice in family law are tragic but rare, and John Hemming thinks they are relatively commonplace – we’re entitled to have different views on that) , doesn’t mean that their ideas and suggestions are without merit, and I particularly wanted to see how John Hemming would want family law to change.  It seemed to me that his views would be a damn good place to start in working out what changes could be achievable, if one started with a blank sheet of paper.

I don’t agree with John Hemming on everything, but I applaud him without doubt for his sincere desire to make family justice better for those who are dragged into using it, and it is substantially easier to knock something down than construct it, so he earns my respect for putting together some proposals.

If you don’t listen to people who have had the roughest end of family justice, how can you genuinely reform it? I don’t say that you should slavishly follow their views, but the real voiceless in the Norgrove consideration of family law were the parents.

I doubt that many people, with the deluge of material we have to read, will have read the draft bill, but I found it genuinely interesting.

[Quick sidebar, the title quote above is actually “That’s all we do, isn’t it? Look at things and try new drinks”  and one that crops up regularly in a book I’ve just been reading called Boozehound, which is about cocktails and is fantastic. I particularly like the author for his insistence that vermouth is a crucial part of a martini, and all this macho “very dry, like open a bottle of vermouth in the next room” nonsense is actually just arising from people like Churchill and Hemingway who were functioning alcoholics and just drinking a very very cold glass of gin.  If you want to try the book, http://www.amazon.co.uk/Boozehound-Trail-Obscure-Overrated-Spirits/dp/1580082882/ref=sr_1_1?ie=UTF8&qid=1344446493&sr=8-1 ] 

Anyway, you can find the draft bill here:-

http://www.john.hemming.name/pmb/family_justice_bill_draft_bill.pdf

There were lots of things I really liked in this.  As a lawyer, there were lots of drafting issues I’d tighten up, and it is clearly a work in progress but the proposals contain good ideas. Drafting is the easy bit, coming up with ideas is the difficult part.

 (I would baulk at the idea that any party to court proceedings can bring up to 5 people in to court to support them, but think formally allowing people to be able to bring in some support is not a bad idea  – the Court would need to be able to control behaviour so that it did not descend into Jeremy Kyle territory, but wouldn’t it be better to have a default position that people can bring in a friend or relative to support them, and only exclude them if they misbehave, rather than assuming that they are inevitably going to be trouble-causers?)

1.  The proposals about grandparents  –  clause 2   

(3) Grandparents or siblings of parents, who are not parties to a case, shall

(a) be able to participate in that part of any proceedings which involves considering whether or not childrenshould be placed with them; and such people who have had care of children should not face detailedassessment unless their children have been subject to a child protection plan or care proceedings; and

(b) in the case of grandparents be permitted to participate in proceedings if they have had long term involvement with their grandchildren and have information which will be helpful to the outcome of the case.

(4) Grandparents shall be permitted to have reasonable direct and indirect contact with their grandchildren without this contact being supervised unless it is not in the interest of the welfare of the child

[I suspect that as a local authority lawyer, I ought to be against the idea of not assessing grandparents in detail, but I actually think that’s a proposal that’s worthy of consideration. If the grandparents don’t have visible or historical problems, shouldn’t we start assuming that they’re decent people? Why not speed up and slim down assessments by working on the premise that grandparents are prima facie a good thing, unless there’s evidence to the contrary?]

2. The addition of a principle that children in care should be placed near their family if possible – clause 2(5)

(5) Children not placed with their family should be placed as close as is practicable to their home authority.

[Though I would add, unless this would place them or the security of their placement at risk, I think it is an important and worthwhile thing to be included in any new Act]

3. The consideration of the conflict that necessarily exists between the Local Authority being responsible for providing for a child in care and at the same time investigating allegations of abuse that occur whilst in care.  The Bill suggests that Parliament should set up an independent body to investigate complaints of abuse to children in care. I think there’s no money for that, but it doesn’t make it a bad idea.

4. Establishing that being, or having been in care during your childhood should be a category covered by the Equality Act. 

5. Proposed amendment to the Adoption and Children Act

 4. Amendment of the Children and Adoption Act 2002

After section 52(1) of the 2002 Act there shall be inserted

“(1A) Where a judge is of the opinion that parental consent may be dispensed with pursuant to subsection (1) (b) he must

(a) in his judgement explain how he has considered the requirement of section 1 (4) of this Act; and

(b) then only make an order placing a child in the care of a local authority after considering whether it is possible and in the interest of the welfare of the child to place the child with one of his relatives.”

I think every judge I’ve ever been before already does that, but I can’t see that it hurts to have it as a statutory requirement. If there’s doubt that it is being done, then make it mandatory.

6. A statutory duty for the LA to act so that the child’s welfare is paramount

6. Children and Parents: Duties of local authorities and other bodies

(1) When a local authority or other body carries out any functions or makes any decisions in connection with the upbringing of a child, the child’s welfare shall be the paramount consideration.

(2) In respect of subsection (1), the local authority or other body must act on the presumption that the child’s welfare is best served through having access to and contact with both parents and grandparents sufficient to enable him to have a meaningful relationship with both parents and grandparents unless in the opinion of the court such contact is not in the interests of the welfare of the child and that information about the child should be provided to both parents.

Again, I think that most Local Authorities do this as a matter of good practice, but I would have no problem with this being enacted.

7. Greater scrutiny for the office of the Official Solicitor

Where I start diverting is :-

The right of all parties to proceedings to record them  (I see the purpose of it, but think it would be misused massively.)

The right of a person who has been deemed to lack litigation capacity to appeal this and to appoint a person of their choice to assist them  (again, I see where the idea of this is going, but the difficulty is that if you are establishing that someone doesn’t have capacity, they don’t then have capacity to make such a decision).  

This was the very issue that got John Hemming into hot water with Mr Justice Wall in  RP v (1) NOTTINGHAM CITY COUNCIL (2) OFFICIAL SOLICITOR (2008) [2008] EWCA Civ 462   (though he was clearly making an important point in that case about a person who was denied the opportunity to fight her case because she was vulnerable)

I do see where John Hemming is coming from with this – it doesn’t sit comfortably with me when a parent who lacks capacity is saying that they want their children back, but aren’t able to run that case because the Official Solicitor takes the view that they aren’t able to.  That requires a bigger consideration of litigation capacity, however. I would not be against a policy whereby the day to day conduct of litigation is run by the O/S, but the parent is able to communicate to the Court through their solicitor or counsel what their wishes are on the big issues of placement and contact.

 The bill’s proposal for a tweaked test on capacity seems, to me, not unreasonable. People should be allowed to make bad, foolish or downright stupid decisions, providing they are not causing themselves harm in doing so. If the decisions fall within a range of reasonable possible decisions  (i.e it is reasonable to eat salad, or chips, or rice, but not to eat glass) then it seems to me appropriate that a person be allowed to make such decision, even if they would, or could have made a better one

13. Ambit of Reasonableness in Capacity

Any person who, in the assessment of their capacity to make a decision, proposes to make a decision that is within the ambit of possible reasonable choices shall be deemed to have capacity for the purposes of that decision notwithstanding that they would otherwise be found incapacitous, unless it would on balance of probabilities cause them serious harm, whether immediately or in the future.

I have to say, I was surprised, although I strove hard to have an open mind when reading the draft bill, how much of it I found sensible or unexceptional. I thought it would go further, and I almost wish that it had.  If this is all that it takes to placate one of the staunchest critics of the family justice system, I would be prepared (were I an MP, to vote for very much of it, and object to relatively little)

I actually wish John Hemming luck with it.

It probably would produce a fairer family justice system than the as yet unpublished bill that I suspect is heading our way, which will make a mockery of the sentiment that “Finality is a good thing, but justice is a better one”