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Monthly Archives: January 2013

Would we want The Truth to be out there?

 

A bit of a thought experiment  / debate about ethics, and whether finding the truth is the be all and end all of Court cases.

In Douglas Adams series of “Hitchhiker’s Guide to the Galaxy” books  [which also contains the immortal line “the ships hung in the sky in much the same way that bricks don’t”]   there is a minor character named Prax.  Prax is about to give evidence in a trial which is interrupted by an attack, just as Prax is being administered a dose of truth serum. As a consequence, he is given too much, much too much, just before he is told to “tell the truth, the whole truth, and nothing but the truth”

 

This leads to him telling the Court everything about the universe  (on the same sort of basis of Neil Gaiman’s theory that we all know how to fly, and in dreams we just remember how to do it, but we always forget on waking) and sending everyone in the vicinity completely insane. A lot of it turns out to be about frogs.

 

So, here is my thought experiment.

 

If a new chemical is invented, which does this: -   “Absolute 100% guarantee, clinically tested, incontrovertible evidence, that it compels a person to answer questions truthfully, it lasts for one hour, it has no side-effects either during or afterwards, it causes no pain or discomfort and is completely safe”

 

 

Would it be okay to give that truth chemical to a parent in care proceedings who is suspected of having caused very serious physical injuries to a child, before you hear their evidence?

 

You can go on, if you like, to consider whether the truth chemical should be administered to social workers and Guardians – I’m happy to be an equal opportunity administer of Truth Drugs, I was just starting with the strongest case I could think of in a family Court setting.

 

[This obviously has similarities to the ‘you’ve captured a terrorist, and he knows where a bomb is, would you torture him?’ debate, but my answer to that is always unequivocally no, I wouldn’t; so I tried to capture something where the process itself was (a) guaranteed to produce a truthful answer and (b) harmless to the recipient]

 

 

Assume for this thought experiment that the Truth Drug is administered by a trained professional and that the Judge has rigorous control over the questions that are asked, to keep them pertinent and on point and not into other prurient areas.  And that section 98(2) utterly applies and that no evidence given in the care proceedings would be admissible for any criminal offence   [The only one it is admissible for is perjury, and that then becomes an impossible offence to commit]

 

 

On the plus side of administering the Truth Serum would be this:-

 

 

  1. The Court want to get to the absolute truth of what happened to the child.
  2. Our current process allows us to get an approximation of the truth, often very close, but never to get a definitive version.
  3. It would be able to absolutely exonerate either the witness or other people under suspicion
  4. If there really was an assault on the child, knowing the exact circumstances and the triggers allow for much greater protection in the future, and probably increase the chances that the child could be in the care of the parent and the risks safely managed.
  5. It dramatically cuts down on the time delay of obtaining all of the records, expert reports, waiting for a hearing, and gets the Truth of the case established quickly, so that things can move on.
  6. If the parent is exonerated, because they did nothing wrong, all lingering doubt and suspicion goes, and there’s no residual worry. And it gets resolved quickly.
  7. Judge time is spent effectively hearing a proper truthful account of the events in question, rather than a forensic dissection of reams of paperwork and conflicting accounts.
  8. If one parent did cause the injury, the other hears that ‘from the horses mouth’ and has no doubt whatsoever about what happened, as opposed to the present situation where sometimes a Judge’s findings are not really accepted.
  9. We clearly WANT a person to tell the truth in evidence, that’s why the offence of perjury exists, that’s why they are given an oath and promise to tell the truth, if this is harmless, you’re not asking the person to do anything more than they are expected and asked to do when giving evidence anyway
  10. We would never end up getting it wrong about serious allegations of physical abuse or sexual abuse, the Court would never have to make an informed deduction and risk getting it wrong. No miscarriage of justice about the facts any longer.

 

On the negative side :-

 

1. Free will    (this is a big one, and goes to the heart of it really).   It is akin to Anthony Burgess’ debate in “A Clockwork Orange” about Ludovico’s Technique – if you could MAKE people behave properly and remove the choice for them to behave in appalling ways, is that worse than having the free will to behave awfully and exercising it? 

 

 

I.e is giving people the power to lie, even about the things that would absolutely be unequivocally better to know the truth about such as how a child came to have a broken leg, more important than always knowing the Pure truth?

 

 

2. The risk that someone might, potentially, feel guilty and feel that they had caused the injury, and thus confess to something they genuinely believed to be true, but that wasn’t objectively true.  

 

 

3. The risk that an off-topic question gets blurted out and answered – for example, a father is in the midst of giving evidence and the mother shouts “Did you have sex with Miriam Margolyes?”  and the father answers, or  “Do you still love me?”

 

4. That in some way it reverses the burden of proof – it is suddenly up to the parents evidence to exonerate them, not up to the Local Authority to prove what happened.

 

5. It takes the need for lawyers out of finding of fact hearing cases  (you wouldn’t need lawyers to ask the questions, the Judge could just ask what she wanted to know).    Some might, I know, consider that not to be a negative but a positive.

 

 

I’m struggling to think of other negatives, and that’s not because I’m wanting to stack the deck in favour of Truth Serum.  I actually feel, in my heart, that I would be against Truth Serum, even though I absolutely believe in the advantages of getting to the real truth, rather than the fumbling in the dark that we have to do, even with all the best forensic scrutiny we can, asking questions aimed at deducing the truth is nowhere near as good as asking questions and KNOWING that the answers given are truthful.

 

 

I’d be very interested to know if others feel the same, or if the Truth Serum really had the certainties and safety features I’ve speculated about in the thought experiment, whether others would prefer to just have it administered and get to the absolute Pure truth and not our judicial approximation of it.

 

 

 

[Digression alert!]

 

That has now led me to a quick exploration of our existing “truth serum drug”, which is sodium pentothal.

There’s clearly such a huge political/military/law enforcement interest in a Truth Serum which works in the sort of way I have described that it is not necessarily merely a thought experiment. If it is possible for a chemical to do this – and sodium pentothal gives a glimpse that it might conceivably be, there’s huge money involved in anyone who can make it.  Maybe in a hundred years time, the concept that you just asked people questions and they promised on a book they didn’t believe in that the answers would be true, will seem utterly ridiculous.

 

 

The developer of sodium pentothal Dr Robert House, was originally using it in sedation on women in the midst of childbirth, and when he noted that they became not only voluble but responded to any question in a frank manner, he started thinking of other applications.   [I do want to know what he was asking them, other than "does this really hurt?"]

 

His original thought was to use it in the exoneration of wrongly accused criminals.  It then became used in a therapeutic treatment of shell shocked soldiers, allowing them to talk about their feelings and fears without shame or worry, and to ventilate those locked-down emotions.  [It got badly tangled up in the Flora multiple personality case, where the girl undertaking therapy was just reflecting back everything the therapist was putting to her and embroidering it]

 

It can also be used to treat phobias, and still is.

 

The chemical has been much beloved by the CIA [allegedly] and spy novelists alike.

However, one of the problems with it as it currently works, is not that it gets people to talk, but that it has the sort of problem Douglas Adams touched on at the beginning – it gets people to talk about far too much, and makes them so suggestible and amenable to what is being put to them that sorting out fact from fiction is impossible.  You can get someone on Sodium Pentothal to be loquacious and cooperative, but what you don’t know is whether anything they are telling you is the truth, or whether they are just telling the questioner what they want to hear.

 

Sodium Pentothal is not so much the Truth Serum of the spy novels, but more of a “Talkative Agreeableness Serum”.  Which is not much use to us at all, either in our thought experiment or in using it to get certainties.  Nor is it a very snappy title.

 

 poor Superman... still, I expect he gets out of it somehow

So, to be abundantly clear, I am not for a second advocating using Sodium Pentothal on witnesses – it would have exactly the opposite effect than we desire, they would just be putty in the hands of a skilful cross-examiner who could lead them down the garden path of their choosing.

 

And as I say, I’m actually even opposed to using my wonder Truth Serum that actually works and does no harm, because at the end of the day, Free Will is more important to me than Truth.  I don’t claim that this is the only answer or the right answer, it is just my answer.

In England, justice is open to all, like the Ritz Hotel

Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant…

As you may know, the title of this piece is drawn from a remark by an English Judge, Sir James Mathew and was made in the Victorian era. It is intentionally barbed.

It had quite a flurry of revival in popularity  last year, as the Government debated and then implemented legal aid cuts that removed free legal advice from large chunks of the most vulnerable in society.

Private law

In terms of private law dispute, my initial question is likely to be true, sadly, as we go past April 2013.  After that time, a parent who is denied contact is going to struggle to get their case off the ground and into court unless they are (a) literate (b) articulate or (c) a person of financial means.      One might be cynical and say that the three things are interwoven, and that having three possibilities isn’t much use if they mostly capture the same group.

Of course, a person can represent themselves in court proceedings and a great many people do very well at it.  (I’d recommend Lucy Reed’s book “Family Courts without a lawyer”  for anyone who wants to do this  http://www.amazon.co.uk/Family-Courts-without-Lawyer-Litigants/dp/0956777406/ref=sr_1_1?ie=UTF8&qid=1359383824&sr=8-1 )

But even then, the litigant in person will either need to pay the Court fee for a contact application, which will be £200, or (if they are of limited means) navigate the byzantine system by which you can avoid paying the Court fee if you can satisfy an unsatisfiable bureaucracy of your entitlement to do so, a task which exhausts many private law solicitors who are well accustomed to trying.

[A bit like the Groucho Marx line that banks will lend money to people who can prove beyond doubt that they don’t need it]

Moving beyond that, you will as a wealthy or moderately wealthy person, have an option, a choice, which is denied to the non-middle class.  You can decide whether to represent yourself or have a specialist used to navigating the courts, who speaks the same language as the judge, who can advise you.  That’s a choice that won’t be open to someone who is not middle-class.  [using middle-class as shorthand for someone who has a professional job which pays them average or better income, regardless of family background and such  - of course there are plenty of plasterers who earn more than bank clerks.   Perhaps the class debate is better expressed as ‘haves or have nots’ but is a shorthand for this piece]

If you are faced with allegations of violence or abuse, you won’t get a lawyer to represent you and defend you against them unless you have money. The other parent, the one making them, might well get a lawyer, even if the allegations are false.

More and more private law cases these days are descending into these sorts of allegations, and probably more and more will in the future, as the funding system says that making them gets you a lawyer, whereas defending yourself against allegations that you say are false, doesn’t. 

Care proceedings

What about care proceedings though? The law says that if you are a parent and the State might be intervening in the way you bring up your child and might be contemplating your child no longer living with you, you would be entitled to free legal advice.

Everyone is on a level playing field then.  Family justice is like the Ritz, it is open to everyone.

But how true is that, really?

Here are some names that you will have seen in care proceedings, often many times, if you work in this field  – Zac, Jordan, Chantelle, Destiny.

Here are some names you have probably NEVER seen in care proceedings, Oliver, Crispin, Sophia, Harriet.

You might well say, and you’d be partially right, that a large tranche of care proceedings relate to neglect, and neglect in part springs from poverty.  So, a middle-class family don’t face the same social problems as a poor family, since they have choices and options.

A middle-class parent who struggles with managing household tasks has an option to get a cleaner, or to have someone do the ironing, they don’t have to prioritise between food and electricity, or gas or a toy for their child.

I would argue that not all poor families end up neglecting their children, and that it is possible, and indeed the vast majority of poor families do it, to get their children brought up in clean, safe and loving environments despite a lack of resources.

But it is certainly true that you’re at far greater risk of living in neglect if money is very tight than if you are affluent.

 

[Subsequent to writing this, I came across an excellent blog post in Community Care on why more poverty does not mean more neglect :- http://www.communitycare.co.uk/blogs/childrens-services-blog/2013/01/poverty-does-not-equal-neglect-benefit-cuts-will-not-see-more-children-taken-into-care.html   and is an interesting counterpoint to this debate. I don't think we are miles apart, though I think if you increase the basic numbers of families in poverty, you may well increase the numbers of those families who don't manage that sort of poverty well enough]

[This is reminding me of one of my favourite books, George Orwell’s “Down and Out in Paris and London”

It is altogether curious, your first contact with poverty. You have
thought so much about poverty--it is the thing you have feared all your
life, the thing you knew would happen to you sooner or later; and it, is
all so utterly and prosaically different. You thought it would be quite
simple; it is extraordinarily complicated. You thought it would be
terrible; it is merely squalid and boring. It is the peculiar LOWNESS of
poverty that you discover first; the shifts that it puts you to, the
complicated meanness, the crust-wiping….

 

And there is another feeling that is a great consolation in poverty. I
believe everyone who has been hard up has experienced it. It is a feeling
of relief, almost of pleasure, at knowing yourself at last genuinely down
and out. You have talked so often of going to the dogs--and well, here
are the dogs, and you have reached them, and you can stand it. It takes off
a lot of anxiety.

I have been, in case you doubt, exceedingly poor, as both a child, and as an adult, and recognise what Orwell says, particularly in his passages about how when you are truly truly hungry, nothing else in the world much exists than that hunger, that preoccupation with food and filling your belly with something.

So, perhaps the care proceedings net doesn’t cast over the “Haves” because neglect isn’t much of an issue in the “Haves” world.

But what about violence, what about sexual abuse, what about alcohol abuse?

I’m fairly certain that the disease of alcoholism, and the effect that it has on parenting, is not a class issue – it can take anyone.   In fact, I have worked, in the past, with people who drank a bottle of wine a night or more, and who would on that basis fail the sort of psychiatric examinations that we were sending parents to.

I have also encountered paedophiles from all walks of life – yes, very many were from damaged and impoverished backgrounds, but many others were teachers, professionals, doctors.

And I fail to believe that it is only poor people, only ‘common’ people, only ‘rough’ people, who reach the end of their tether, lose control and do something to a child that they should never have done.

There’s sort of a feeling, an unspoken one, in the Court rooms of this country, that child abuse is not done by people like us, that it belongs to a different world, another one, that we can look at, and judge, but not one that we truly belong in. There’s very little “there but for the grace of god” in child abuse cases.

As we know, and must remind ourselves, “The plural of anecdote is not data” and therefore it is of only  limited (or indeed no) evidential value that most of the times I have seen parents with middle-class jobs, accents, bearing and relations, facing allegations of physical mistreatment of children, a reason has been found as to why the medical evidence is wrong, and why they can be exonerated.

Efforts seem, again anecdotally to me, to be found by a mixture of professionals  (and again, I don’t claim that this is a conscious or deliberate action) to be more amenable to accepting that people like us couldn’t have done these dreadful things, than when similar things are alleged of people who live in a different sort of world to our own.

I don’t know how one could do the research on whether the outcomes for middle class parents are better for them than those for other parents – there’s no box on the application form for “Is the parent a bit posh?”    or “Do they shop at Asda or Waitrose?”   “Do they say napkin or serviette?”   but I’d like to see some, if someone wants to set out to do it.

So there is  at least the possibility of an unconscious bias of favouring or being more amenable to accepting the evidence given by people like us.

Can it go even further than that? To the overt stage, where actual cash, actual financial resources buys you a greater opportunity in a family case?

I don’t mind bribery, obviously. I don’t think that bribery plays any part in English justice. Call me naive if you want, I just honestly don’t believe that.

I had recently a conversation which prompted me to think about this piece, about a case (not one I was involved in, even tangentially and not necessarily a recent one) of suspected non-accidental injury, where the parents wanted to get a further piece of medical evidence, a fresh report. The Judge refused it, for good reasons about delay and proportionality.

The parents then pipe up that they could pay for the report themselves, rather than through legal aid, and lo and behold, there’s a reconsideration and the report is directed.

The justification, perhaps not unreasonably, is that the report is likely to be accelerated, expedited, on-time, if the expert knows that people are paying for it privately.  So the delay might not be so long, and the expert report will probably not hold the case up so much.  And of course, in the world we operate in, the Judge knows that the parents writing a cheque saves at least 2-3 weeks of messing around with the Legal Services Commission and prior authority, so the report probably will get done quicker.

Is that okay, or does that feel wrong?

It feels wrong to me that a person gets the chance to have a report not because of the merits of their case or the circumstances of the case, but because they, unlike someone else, can write a cheque and get it done.

[I couch all of this with the caveat that it wasn’t my case, I wasn’t there, I don’t know the detail – there may well have been very compelling reasons I am unaware of to have taken that course of action, but even just looking at it in the theoretical sense, would it be right in this hypothetical case below to allow the report?

 

Doctor says “I can do the report in 12 weeks, on public funding, but if it is paid for at my private rates, which are higher, I can do it in 5” 

 

If the Judge was going to refuse the report on basis that 12 weeks delay was too long, should she allow it in 5, if the parents are able to pay for it privately?    Or, is refusing it, if 5 weeks is considered reasonable delay, unfair just to preserve equality with some notional other parents who couldn’t pay the private fees?]

 

 

Can you go off and pay for your own expert without the Court’s permission?

Well, there have been some important decisions about that.  Firstly, you need leave of the Court to give the papers to the expert, and then  if you get leave of the court to instruct an expert, you have to cough up the report even if it is not favourable to you (unlike in crime)   [Re L : A Minor : Police Investigation : Privilege 1996 1 FLR 731 and then Re V (Care Proceedings : Human Rights Claims 2004 1 FLR 944]

 

If you don’t get leave of the Court and go off and get the report anyway, it still has to be disclosed.

[If there are ongoing criminal proceedings, the parent can keep those reports secret and even refuse to say if there are any expert reports and who has written them, and can keep legal privilege when discussing those reports with their care lawyer  S County Council v B 2000 2 FLR 161]

One clever way around this was tried in RE J (Application for shadow expert) 2008 1 FLR 1501

Where the applicant sought permission not to obtain a report that would have to be disclosed whether it was positive or negative, but instead an expert to basically advise the lawyer and formulate good questions for cross-examination and be a sounding board for the barrister’s theories. 

The Court felt that this was not appropriate and would not be granted. And of course, it would only have been a course open to someone paying for the report privately.

Can you get a better barrister by paying money?

A parent relying on a barrister who is being paid with public funding (or what all sane people call “Legal Aid”) will get proper advice, from someone who works hard and does their best and is bright.  All barristers who have experience in care proceedings do legal aid work, so you can’t get some better barrister, better advice by paying privately.  There’s not a Premier League of barristers who know about care but don’t do legal aid work.

I would NOT, for a second, suggest that the average barrister works harder or better on a case that they are earning more money on, I don’t think money comes into it. Honestly, I don’t.

But what you can get, potentially, is a QC.  If you are willing to pay for it, you can get a QC in a case that the LSC (legal services commission, or what sane people call the legal aid board) would not let you have one for free. 

That QC is the best of the best, and may give you an edge in the case.  Though some barristers who don’t have QC after their name are better advocates than some QCs, in general, a QC is going to be better.

It may well send a subliminal message to the Court about your case and the quality of it. Certainly there’s always an impression that the Court treats a QC with more respect than a run of the mill advocate.

Or you may not even need to go that far. Suppose you think about your barrister doing your case for public funding – they will work hard at your case, and put in effort. But they have another case the week before where they are doing that, and another the week after.

Might you get better representation from the same barrister, if you were willing to pay them to take two or three days off the week before your case to prepare?

We can’t know for certain, but I’d suggest that we all work better when we’re not shattered.

That’s an option available to those who have money that doesn’t exist for those who don’t.

Ring your solicitor up and say “I think my barrister should really only work on my case and nothing else the week before the hearing”, and you’ll get this answer if you have no money “That’s a nice idea, but I’m afraid it doesn’t work like that”   – and if you have lots of money, this answer  “They don’t normally do that, but we could see if they would – it would be very expensive though, you’d be paying for seven days of their time instead of five. Do you want me to speak to them about it?”

So, is English family justice really like the Ritz, or am I just crackers?

Eagle-eyed Action Plan – now with kung-fu grip

 

The Family Justice Board have published their Action Plan for implementing the proposals of the Family Justice Review. It is a scorching, searing rollercoaster (TM)  of an Action Plan, blending as it does dizzying arrays of key performance indicators, tiresome management-speak, gobbledegook and claims that things have already been ‘actioned’ that come as a complete shock to those who are working in the field and have seen no such things being even contemplated, never mind “actioned”.

 

As a summary of it (and for God’s sake, don’t read the whole thing, it is deathly dull – and I say that as a lawyer, and thus someone who has a pretty high tolerance for dull stuff, I had to read land law and stuff about trusts to pass exams, and one might scathingly add, my idea of fun is to write law blogs)   you can’t do better than John Bolch’s article on Family Lore.

 

 

http://www.familylore.co.uk/2013/01/family-justice-board-action-plan.html

 

 

That’s really it in a nutshell, but if you’re the sort of busy high-pressure, multi-tasking, Type A personality sort  (you know, the ones who the idea of a cereal bar sounds like a good way to combine eating breakfast with walking or travelling so as to not waste five minutes eating some Coco Pops),  who laughs in the face of nutshells and wants something altogether shorter, here goes :-

 

 

They will still be having meetings about “stuff” all the way through 2014 and won’t really be doing anything until 2015  (and the “stuff” they are finally getting round to  doing in 2015 all sounds to be PR and focus-group nonsense)

this may be the most 'shocked' action man i have ever seen

 

“The purifying ordeal of skilled argument on the specific facts of a contested case”

 

 A discussion of the Court of Appeal decision in Re TG (A Child) 2013, and using that recherche  Victorian novelist style of chapter heading   “In which the Court of Appeal discuss physics, experts, fairness, and bouncy chairs, the art of advocacy is considered, our attention is drawn to the spectre of separate representation without conflict, and in which we say goodbye to a magnificent Judge”

 

The case can be found here:-   

 

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/5.html

 

 

[Note to self :- I have realised that I use that formulation far too much, so next time I will just say “Lo” and give the link]

 

 

This is a great case, and a judgment packed full of goodness and crunch for the family law geek – it is resonant of the old 1970s advertising jingle for “Topic”  – it has a hazelnut in every bite, so to speak.

 

 

Firstly, the issues are about a finding of fact, and interesting medical issues. Secondly, it involves a sexy science of biomechanical engineering, and all sorts of interesting theoretical experiments and whether they should be carried out in practice. Then we have the fact that the cost of proposed expert assessment is pretty eye-watering, then a dissection of where the judicial discretion is on allowing or refusing experts, and then a discussion of whether our system is inquisitorial or adversarial (and regular readers will know that I have certain views on that).  The Court of Appeal finish up with some words about parties with common interests being separately represented which have the chime of a broader warning than just in Appeal cases, and then say goodbye to Lord Justice Hedley who retired after delivering this judgment.

 

So much stuff, I am going to break up the chunks, with the proclamation:-

 

“Topic!”

 

 

  1. TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.
  1. Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.
  1. At this point I should interpose the father’s account of an incident which the parents believe may have caused some at least of TG’s injuries. I understand the local authority to point to what are said to be various discrepancies in the parents’ accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father’s account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:

“I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.

I can only assume that TG’s chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG’s head and chest area.”

  1. We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby’s comparatively low centre of gravity and the fact that the baby’s bottom is not very high off the floor the chair is stable when placed on the floor.
  1. At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.

 

 

The Appeal then hinged on the case management decisions of H H Judge Bellamy not to allow the father to instruct an expert biomechanical engineer, Dr Van Ee, who gave some evidence in the Al Alas Wray case.   [I find myself fascinated by how to pronounce the last element of Dr Van Ee’s name, but that’s by the by]

 

Father’s counsel was eventually able to persuade the trial judge to permit an interim report from Dr Van Ee, effectively setting out what a biomechanical engineer could bring to this particular table

 

 

  1. “Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage.”

 

  1. In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as “the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response”; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, ‘Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture’, and Van Ee, Raymond, Thibault, Hardy and Plunkett, ‘Child ATD Reconstruction of a Fatal Pediatric Fall,’ which he says “further refine head injury tolerance for skull fracture and intracranial trauma.” He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother’s suspicion that “MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG’s head … when MG tried to get off, the chair flipped forward 180 degrees”. He set out a ‘Suggested Plan for Further Analysis’ which I reproduce as an Appendix.
  1. As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:

“Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage.”

Dr Van Ee also contemplated experiments using a number of children of MG’s age “sitting down rambunctiously” to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.

 

Man, those sound like a great set of experiments  – getting a group of toddlers to sit down rambunctiously to see if they can tip a crash test dummy baby out of a bouncy chair…  

 

The next line may well suggest why the trial judge baulked at commissioning an expert based in America to do this experiment

 

Dr Van Ee ended his interim report with an estimate of the cost – between $18,500 and $22,000

 

 

[Even if the video footage of rambunctious toddlers attacking bouncy chairs could be sold to “You’ve been framed” that’s still a high cost left on the taxpayer]

 

 

 

Before the Court of Appeal started their systematic root and branch overview of the role of biomechanics in reported cases (which is in itself great, and hopefully I will get to later), they make this observation

 

The father’s application was supported by the mother. It was opposed by the local authority. The most important point made by Mr William Tyler for the local authority was that the tests which Dr Van Ee proposed to undertake amount to a reconstruction in a case where it is impossible to arrange for a meaningful reconstruction given that no-one – not even the father – witnessed the incident he described. The ‘reconstruction’ would therefore be based upon speculation as to what actually happened. At best, he submitted, biomechanical engineering evidence in this case would be of no more than tangential relevance, so to allow it would offend against the principle of proportionality

 

 

 

And this was pretty pivotal – as whilst a detailed explanation of an observed injury could be unpicked by a biomechanical engineer to see if the forces involved were sufficient and the mechanism itself physically possible, with no observation of the incident itself, all that could be done was a wide range of the possibilities.

 

 

  1. On the central issue Mr Tyler has three submissions. The first is that there is no witnessed incident to reconstruct. Even on the father’s account he did not witness it. Moreover, says Mr Tyler, the father’s account has varied over time. So the crucial question is: what is a biomechanical engineer here to recreate? What, he asks, is being tested? Whether a toddler could overturn the bouncy chair and in doing so create the requisite forces? If so, how: forwards, backwards, sideways? In one movement, or a number? And so on. Thus, even were biomechanics an established and tested scientific discipline with a track record of assisting the family courts, this is not, he says, a case in which any assistance could be gleaned. He also asks rhetorically, what is the purpose of biomechanical testing in relation to the rib fractures, as proposed by Dr Van Ee, when the radiological evidence dates them as having occurred earlier than the incident recounted by the father?
  1. Mr Tyler’s second submission is that in any event biomechanics is not yet established as being of any use in a case such as this. Properly read, he says, the authorities relied upon by Mr Vine do not establish what he seeks to derive from them. He concludes a careful analysis of the cases with the submission that, whilst it is certainly true that various courts have allowed the instruction of experts in the field of biomechanics (including, as we have seen, Dr Van Ee), it is rather less clear that any court has derived any significant assistance from such evidence. Mr Tyler accepts that in a case where there is a single, witnessed and reconstructable incident said to have caused the totality of the suspect injuries there may be a place for such expertise – a proposition which, he suggests, will probably require some degree of ‘case by case’ evaluation in the Family Division over time. But this, he says, is simply not such a case.
  1. Mr Tyler’s third submission is that the court, informed as it will be by the other five experts, has no need of such evidence or assistance as could be obtained by biomechanical reconstruction. This is not, he says, a particularly unusual case, whether as suggested by Mr Vine or otherwise. Given that there are already five other experts, the assertion that the refusal to allow the father to adduce evidence from Dr Van Ee would involve a breach of Article 6 is, he says, simply wrong. He points to the fact that, in contrast to Dr Anslow, Drs Shaw and Cartlidge and Professor Taylor have each, with varying degrees of emphasis, expressed scepticism as to the utility of biomechanical evidence. He ends with a floodgates argument: if biomechanical evidence is permitted in this case, where an unwitnessed incident is said to account for injuries some of which in any event pre-date the incident, then, he says, it is hard to see how such evidence could be disallowed in many, many routine care cases up and down the country.

 

 

 

But on the other side of the coin

 

Mr Vine asserts that the appeal raises a point of law of general importance, namely the admissibility of biomechanical evidence in suspected non-accidental head injury cases. He says that the question of the forces generated by the bouncy chair overturning will be a central issue; it is a question of physics and biomechanical engineering; and one outside the direct experience and expertise of the various medical experts already instructed. He points to the authorities I have referred to as showing, as he would have it, that the criminal division of the Court of Appeal has recognised the importance of biomechanical engineering in this context and that biomechanical evidence has been permitted in both the criminal and the family jurisdictions. He took us to R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [148], where Gage LJ referred to “the growing science of biomechanics” as having “had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries.”

 

 

And

  1. The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: see W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. But although the case management judge must be alert to the risks, the potential for such tragedies does not entitle a parent in care proceedings to an expert for the asking: see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, paras [15]-[18]. Nor does it relieve the case management judge of the duty to exercise his or her discretion in accordance with the various provisions of the Family Procedure Rules to which I have drawn attention.
  1. In every care case, as indeed in every case, the case management judge will need to assess and evaluate the degree of likelihood that a particular expert’s evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed. It is vital that the case management judge keeps an open mind when deciding whether or not to permit expert evidence. The judge will need to be alert to the risks posed by what may turn out to be ‘bad science’. On the other hand, the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case: consider, for example, what happened in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378.
  1. In this connection the case management judge will also need to bear in mind what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10]:

“there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.”

My Lord elaborated the point in an important passage (para [19]) which merits quotation in full:

“I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children) [2012] EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.

  1. As against all this, we must never forgot the point made by Dame Elizabeth Butler-Sloss P in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]:

“The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

 

 

 

 

[I suspect that these passages might well be snipped into submissions and skeletons on applications for assessments of a medical nature over the next few months – they are pretty impressive arguments]

 

So, a lot potentially at stake – on the one hand, risks of injustice which could be cleared up by a biomechanical engineer, on the other, the risk of floodgates being opened  (if you need a biomechanical engineer in this case, why not in every case of unexplained physical injury?)

 

“Topic!”

 

The Court of Appeal remind themselves also that the bar for expert assessments is about to be raised, though they were deciding on the previous test. [And they confirm that judicially speaking, the bar has been significantly raised – my underlining]

 

  1. (3) Third, the court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Rule 25.1 provides that:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.”

  1. Thus the Family Procedure Rules as they are today and as they were when Judge Bellamy had to decide what was to happen in the present case. But they are very shortly to be modified. With effect from 31 January 2013 the amendments made by The Family Procedure (Amendment) (No 5) Rules 2012 come into force. Rule 1.4(2) is re-cast to provide (paragraph (e)) that active case management includes “controlling the use of expert evidence.” Rule 25.4(1) is also re-cast, to provide that:

“In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.”

Rule 25.1 is significantly amended, to provide that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

It is a matter for another day to determine what exactly is meant in this context by the word “necessary”, but clearly the new test is intended to be significantly more stringent than the old. The text of what is “necessary” sets a hurdle which is on any view significantly higher that the old test of what is “reasonably required.”

 

 

“Topic!”

 

 

The consideration of how useful biomechanical engineering is as a discipline to the family Courts is a good one. It is all set out in paragraphs 39-44, and if you are seeking such an expert, or opposing it, that is a good place to start.

 

If you want something more pithy, here it is:-

 

44. During the course of argument in the present case, Hedley J asked Mr Vine whether he was aware of any case, criminal or family, in which biomechanical evidence had been found to be of any significant assistance to the court. My Lord added that he was not aware of any such case. No such case was identified at the Bar and we are not aware of one.

 

 

That was clearly a moment when poor Mr Vine for the father felt this case had probably slipped away from him.

 

 

“Topic!”

 

 

The Court stressed that they were not making any decisions as to whether the field of biomechanical engineering was admissible evidence, and it was accepted by all that it was – the issue was whether it was ‘reasonably required’ on the test as it was then, and whether article 6 could be construed as meaning that father was entitled to call the evidence that he was advised was needed to run his case.

 

 

  1. At the outset I should clear two matters out of the way. Mr Vine, as we have seen, suggests that the present appeal raises a point of law of general importance, namely, as he identifies it, the admissibility of biomechanical evidence. With all respect to Mr Vine, it raises no such question. The local authority does not challenge the admissibility of Dr Van Ee’s evidence, any more than it challenges his expert credentials. And in any event the question of admissibility is not determinative, because rule 22.1(2) empowers the court to exclude evidence that would otherwise be admissible. The issue before Judge Bellamy was rather, in accordance with rule 25.1, whether Dr Van Ee’s evidence was “reasonably required” – and it was to that question that Mr Tyler appropriately directed his submissions both here and below.
  1. Mr Vine also mounted an argument based on Article 6. Plainly, Article 6 is engaged, as are the principles set out in the two Strasbourg authorities to which he took us. But this does not, in my judgment, take him anywhere. The relevant statutory scheme, including the relevant provisions of the Family Procedure Rules, is Convention compliant. No-one has suggested the contrary. And a case management judge who properly applies the statutory scheme and the Rules will be acting in a Convention compliant way. There is nothing in the Strasbourg jurisprudence to entitle a litigant to demand that he be permitted to call whatever evidence he wishes. So far as material for present purposes what the Convention requires is a ‘full merits’ investigation by a court and a procedure which ‘taken as a whole’ is fair. The fact finding hearing will involve a ‘full merits’ investigation by the High Court. The refusal to permit the father to adduce evidence from Dr Van Ee involves no unfairness and breaches neither of the principles upon which Mr Vine relies.

 

 

“Topic!”

 

 

So, on the issue of whether biomechanical engineering had something to offer in this case, the Court of Appeal concluded that it did not. 

 

What I love here is that we start with science and quite carefully argued science

 

  1. In the present case the hypothesis is that the bouncy chair tipped over forwards, rotating, with TG strapped in, about the fulcrum represented by the two points of the V at floor level. Although no doubt the actual analysis and calculations are more complex, the basic principles of the mathematics and physics which are here engaged will be familiar to many. Simple geometry demonstrates that on this hypothesis TG’s head will have travelled through the arc of a circle, the radius of which is the distance between his head and the points of the V. The first part of the arc is that part of the trajectory as the chair is tipping forwards until the head is vertically above the fulcrum; the second part of the arc is that part of the trajectory where the head rotates forwards through 90º from the vertical until it hits the floor.
  1. It will be appreciated that in a case such as this there are two questions of particular importance. (1) What is the amount of force required to pull (or push) the bouncy chair forwards until it reaches the tipping point at which, if unsupported, it falls forward under the force of gravity until the baby’s head hits the floor? Alternatively, on the mother’s hypothesis, what is the amount of force required to pull the chair backwards as far as it will go before it is released, springs forwards and (assuming this is even possible) reaches the tipping point? (2) What are the forces exerted on the baby’s head and upper body as it hits the floor? In principle, one would expect well known principles of Newtonian physics to be capable of providing at least approximately accurate answers to both these questions once one has fed into the relevant calculations factors such as the radius of the notional circle, the baby’s weight and the location of the baby’s centre of gravity.
  1. But the answer to the second question will depend upon a number of other factors: What is the rotational speed of the baby’s head as it passes the tipping point? This will in turn depend upon the mechanism by which the baby’s head reached that point. On the mother’s hypothesis, the bouncy chair will have acted as a spring, projecting TG forward, potentially at some speed, as MG released his weight from behind. If, on the other hand, the bouncy chair was pulled forwards from the front, then the rotational speed at the tipping point may have been less, possibly much less or even zero. What, if any, forces, other than gravity, were operating once the baby’s head had passed the tipping point? This again will depend upon the mechanism. On the mother’s hypothesis the only forces would seem to be (i) the forces reflecting the rotational speed as TG’s head passed the tipping point and (ii) gravity. If, on the other hand, the bouncy chair was pulled forwards from the front, then there may have been additional forces, either pulling the baby forwards and downwards or, possibly, working in the other direction to restrain its free fall.

 

 

And then the President returns to the non-maths planet most people live on

 

Now one does not, I think, need the expertise of a biomechanical engineer to demonstrate what every parent will know, that an eleven-day old baby strapped into a bouncy chair is simply incapable of generating the forces required to tip the chair over

 

 

And that if what one is instead doing is trying to establish whether the rambunctious toddler, MG, could have tipped the chair over whilst poor TG was in it…

 

  1. entirely accept that a biomechanical engineer will, in principle, be able to obtain values, whether by theoretical calculations and/or by experimental measurements, and in relation to a variety of postulated factual scenarios, for (a) the forces required to tip the bouncy chair over with TG in it (what I will call the ‘tipping forces’) and (b) the forces applied to TG as his body and head hit the floor (what I will call the ‘impact forces’). But that information of itself is of very limited value in the present case. There are three problems.
  1. First, we simply do not know, even on the father’s case, what actually happened. Was the bouncy chair pulled from in front or pushed from behind? Or was it, as the mother hypothesises, pulled back and released like a spring? Was MG’s weight part of the load on the bouncy chair as TG hit the ground, and if so where about on the bouncy chair was his weight operating? Did MG land on top of TG? These different scenarios (and they are not necessarily an exhaustive list) are likely to provide a range of very different values for both the tipping forces and the impact forces. Second, and in the nature of things, we do not know whether MG was capable of exerting the required tipping forces. Dr Van Ee proposes practical experiments using toddlers of the same age, but such experiments, even if feasible, are unlikely to provide compelling answers, given the number of different scenarios that would have to be tested and, not least, the near impossibility of comparing the actual physical strength and other characteristics of the experimental 13-month old subjects with the characteristics at that age of the now 20-month old MG. Third, and even assuming all these difficulties have been overcome, there remains the fundamental problem that, in the nature of things, we have only a very imperfect understanding of how a baby’s body works and, in particular, of how much force is required to produce a particular form of injury in a baby. Let us assume that Dr Van Ee is able to produce values for the impact forces on different scenarios of, let us say, x, y and z. How do we know whether x, y, or z is sufficient to cause any of TG’s injuries? Mr Vine suggested that the answer is to be found in the ‘risk probability curve’ referred to by Dr Van Ee, but he did not explain why, nor does Dr Van Ee in his interim report. Indeed, we were not even shown the curve or the paper in which it was published.
  1. In these circumstances it seems to me that the prospect of Dr Van Ee’s work producing any useful evidence in this particular case is sufficiently slight as to fall well short of the “reasonably required” test. The fundamental problem, as Mr Tyler correctly identifies it, is that there is no witnessed incident to reconstruct. So, as he puts it, what is Dr Van Ee to recreate? The reality is that we are, factually, too far into the realm of speculation in this case for biomechanical engineering to be capable of providing the court with any significant assistance

 

 

So, in this case, biomechanical engineering had nothing of value to add, and the trial judge had been within his judicial discretion to refuse to commission the report.

 

What about cases generally? Does biomechanical engineering have something to offer generally?  Here the President, in stylish language to be sure, gives an answer which is pretty similar to that of a parent when asked by a six year old “Mum, can we have a rabbit?”

 

 

That leaves the more general question of whether, in other cases, biomechanical evidence might in future satisfy the “necessary” test. I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts. As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance. But I emphasise the qualifying words I have just used. We can only operate on the best and most up-to-date science available to us today. But we must always bear in mind that tomorrow may bring about a transformation of scientific knowledge so that, to use Dame Elizabeth Butler-Sloss P’s words, new scientific research will throw light into corners that are at present dark. Whether and if so when this will come about in relation to this particular scientific discipline we cannot say. That is why, as I have already emphasised, case management judges must always keep an open mind when deciding whether or not to permit expert evidence particularly where, as here, the science is both complex and developing.

 

 

Translation   “We’ll see”

 

 

“Topic!”

 

 

The Court then go on to talk about adversarial v inquisitorial, and produce the lovely line which titled this piece.

 

  1. It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish ‘threshold’ they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probability that those events did indeed happen. And if it cannot do so, then its case will fail and must be dismissed.
  1. The process of determining whether the local authority has or has not proved its case on threshold takes place under the vigilant eye of the judge. But in our adversarial system the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them. It is over 600 years since Hankford J is reported as having said in 1409 (YB 11 Hen 4, Mich fo 37) that:

“Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known].”

In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.

  1. In an arresting phrase, Megarry J (to whom I am indebted for the reference to Hankford J), once referred to the aid afforded to the judge by “the purifying ordeal of skilled argument on the specific facts of a contested case”: Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16. The context there was very different, but the same goes for cases in the family courts. Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. As Wall LJ said in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

 

 

Translation :- “hooray, lawyers are great!”

 

 

But we move on

 

  1. Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered. Every £100 of public money spent paying for the separate representation of litigants in family cases who do not require to be separately represented is £100 unavailable to pay for representation which is required. If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration. That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.
  1. Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy’s order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father’s appeal and the children’s guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense. Included amongst the directions I gave on 14 December 2012 was this:

“The court will be much assisted by submissions from the children’s guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice.”

Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party’s stance. Was this not such a case?

  1. This is not a matter which we raise for the first time. Almost twenty years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords made some very pointed comments which seem to have had little effect. More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

“We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.”

He went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

  1. That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.
  1. In fairness to those who appeared before us I should make clear that we did not explore this issue at the hearing. Accordingly, it would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position.

 

 

Translation :- “What are you doing here? Aren’t you saying the same as that bloke next to you?”

 

The passage I have underlined is something which has potential consequences for all cases, not just appeal hearings.

 

I do recall, quite vividly, when the Protocol came out, a fleeting moment of crackdown, where tribunals were quizzing advocates on why the mother and father were separately represented when they sought to care for the child together, and the view being that this would be the exception rather than the norm.

 

But this was pretty quickly resolved, advocates worked out that there was a formula of words, along the lines of “potential for conflict to arise at a later stage, and the need for parents to have continuity and for them to have independent advice”  was enough to defuse that, and keep two of them in each case.   

 

[There are, I know, very very many cases where there is genuine potential for conflict, and it is perfectly right and proper for mother and father to be separately represented, but I do also go to many final hearings where you could not put a cigarette paper between the case of the mother and the father, yet they have separate counsel making the same points for each of them, and handing up two forms, resulting in due course in two bills being paid from the public purse. . The Court of Appeal are dropping a pretty heavy hint here that in a time of austerity, that might have to be addressed, and probably that if it is not self-policed, the consequences will be financial squeezes in other areas affecting the professionals]

 

 

All in all a fascinating judgment, and as it is effectively the President’s first, and Lord Justice Hedley’s last, the two of them being very stylish constructors of judgments, I think it is well worth a read.

 

 

[And if you’re my age, you have been wanting throughout this piece to hear the Topic jingle, so I will put you out of your misery.  Next week,  Ordinary Residence and “Nuts, Wh-oh-oh-le  Hazelnuts, Cadbury’s take them and they cover them with chocolate!”   ]

 

 

 

http://www.youtube.com/watch?v=ksxdrMPUAwk

 

Statutory orphans 2 (erm, “This time it’s practical”?)

 

The High Court have given some guidance [in A City Council v DC 2012]  on how to deal with applications by a Local Authority to revoke a Freeing Order when their plan is no longer adoption. I suggest that it may have implications for the large number of imminent-ish applications to revoke Placement Orders in similar circumstances.

 

That avalanche is hanging over us, just waiting for either the Minister to give a hearty shout or for the starting gun on adoption target timescales to be fired, and the whole lot will come down.

 

look out below

look out below

You may recall that Mr Justice Peter Jackson gave a scorching judgment castigating the LA and the Independent Reviewing Officer for leaving children in limbo and not making revocation applications where the Freeing Order was no longer being contemplated as a prelude to adoption.  

 

That was in Re A, S and Others v Lancashire 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html 

 

 

The blog on that is here:-

http://suesspiciousminds.com/2012/07/02/definition-of-chutzpah/

 

The case is A City Council v DC & Others 2012  and can be found here:-

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/8.html

 

There’s a curious esoteric debate about what happens when a Freeing Order is revoked, whether the Court should  revive the Care Order, or as suggested by the parents advocates, make an Interim Care Order and get stuck into a root and branch review of the new care plan. The Court decided that the former, as set out by lots of previous case law, is the correct approach.

  1. Mr. Nuvoloni on behalf of the father was in his written material understandably preoccupied with his lay client’s human rights. He ‘floated’ in his written submission an argument that the new s20(3)(iia) could, and should, be interpreted as permitting the court to make an interim rather than a full care order upon revocation of the freeing order. He submitted that to deny the parents the opportunity to challenge or scrutinise an up-to-date care plan, through the medium of an interim care order, would be accepting an interpretation that offends against the requirement of the Human Rights Act 1998 and in particular section 3 of the Human Rights Act 1998 which requires that primary legislation, in so far as is possible, is to be read and given effect in a way compatible with Convention rights.
  1. Mr Nuvoloni submited that the revival of a full care order would amount to a breach of Article 6 and 8 of the Human Rights Act of both the parent and child.
  1. In oral argument Mr Nuvoloni revised his position and accepted that the interpretation he proposed which would allow the court to make an interim care order with a view to scrutinising a new care plan, stretched the wording of the statute beyond breaking point. Further he accepted that if a procedure was adopted by the courts whereby the parents were given sufficient information to enable them to obtain legal advice and, if advised, thereafter to make an application for contact or the discharge of the care order, then their Article 6 and Article 8 rights as reinstated parents would be adequately protected.
  1. Mr Nuvoloni, in my judgment was wise to make the concessions he did and to concentrate, (as he has done most effectively), on how best the court should now proceed. From a statutory interpretation point of view, the section is, in my judgment capable of only one interpretation; the wording is to revive……any care order within the meaning of that act. The use of the word revive in the statute shows that what is intended is that the full care order (made immediately prior to the freeing order), is to be restored and accordingly a care order will be the order determining J’s legal status following the exercise of the court’s inherent jurisdiction to revoke the freeing order.
  1. Prior to a freeing order being made, it was necessary for the court to have made a full care order, there is therefore no other order that could be revived pursuant to s20(3)(b)(iia) other than the care order made immediately prior to the freeing order. The wording of the statute is unambiguous. It does not provide the court with any residual discretion; for example to replace the freeing order with such order as the court thinks fit having scrutinised a care plan or alternatively with an interim care order made earlier in the original care proceedings.
  1. I note that both Black J in Re J and Peter Jackson J in A and S children v Lancashire CC [2012] EWHC 1689 (Fam) (para 95) not only made full care orders upon the revocation of the freeing orders but that all parties in both cases accepted the interpretation of the Act which is now accepted on behalf of the father.
  1. The revival of a full care order is not in my judgment incompatible with either Article 6 or Article 8. The effect of section 20 AA 1976 as amended, not only revives the care order, but also reinstates parental responsibility to the former parents. Those parents, in the exercise of that parental responsibility, are thereafter entitled to make an application for contact or to seek the discharge of the care order (subject to the exceptions in the guidance referred to below). In the meantime the care order regularises the child’s legal position whilst recognising that the child is, and often has been for many years, ‘in the care’ of the local authority.
  1. A local authority seeking to regularise the legal position of statutory orders will, as a matter of course, have to file a statement in support of their application for the revocation of a freeing order. Such a statement will, of necessity, set out not only the history of the child since he or she was freed for adoption but also that child’s present circumstances; the statement will be served on the former parents who will be parties to the proceedings. It follows therefore that at an early stage in the proceedings (subject to the exceptions in paragraphs 42(ii) and 42(iii) of the guidance set out below) the parents will have an opportunity to make an application for either contact and or the discharge of the care order.

 

 

All of that is more law geeky than practical, but the parties asked the High Court for practical guidance on the procedure to be followed in these applications, and the High Court, in the form of Mrs Justice King duly obliged.

 

  1. I am grateful for the assistance given by Counsel and to the local authority solicitor in this case in putting together this procedural guidance which has been approved by the Acting President Mr Justice Holman.

A: ISSUE & APPLICATION

i) The general rule is that any application by a local authority asking the court to exercise its inherent jurisdiction in order to revoke a freeing order should be made in the High Court on notice to the former parents including those former parents who have made a declaration under s18(6) of the Adoption Act 1976.

ii) Exceptionally an application may be made without notice (and in such circumstances the remainder of this guidance shall be departed from as appropriate). When making such an application the local authority must file a statement in support giving reasons for seeking a without notice order by reference inter alia to the principles in KY v DD [2011] EWHC 1277 (Fam) (a wardship case) where Theis J, (giving guidance endorsed by the President of the Family Division), re-emphasised the established principles in relation to without notice applications as set out in Re W (ex parte orders) [2000] 2 FLR 927; Re S (ex parte orders) [2001] 1 FLR 308; B Borough Council v S and anor [2006] EWHC 2584 (Fam),

iii) Similarly any application to withhold any of the information, which would otherwise be included within the application as set out below, must be made subject to the principles set out by the Supreme Court in Re A (A Child) [2012] UKSC 60 and be accompanied by a statement in support of the application.

iv) Good practice would require that, if they can be traced, the former parents should be told of the forthcoming application face to face by a social worker and be given some sort of explanatory note to help them to understand the nature of the application, which note will thereafter be of assistance to them in obtaining legal advice and public funding.

v) The application should be made using Form C66 and the requirements for a copy of the child’s birth certificate and or a copy of the entry into the Adopted Children Register should be dispensed with, (if necessary by order made at the first hearing).

vi) The following documents should be filed in support of the application and served, together with the application on the former parents: [Permission for the disclosure of those documents which were generated in the earlier care proceedings should be sought from the trial judge (or local Designated Family Judge if the trial judge is unavailable), prior to issuing the application in order to ensure that service of all documents takes place at one time]

a) Copies of the care order and freeing order

b) A transcription or note of judgment from the previous care proceedings

c) The final care plan from the care proceedings

d) A short neutral chronology covering significant events prior to the child’s admission to care and significant events following the making of the freeing order

e) The children’s guardian’s final report from the care proceedings

f) The Looked After Child (LAC) review minutes, usually for the last two years preceding the making of the application, but in any event to include the LAC review where the local authority made its decision to change its care plan from one of adoption.

g) An updated care plan

h) A statement by the allocated social worker or other appropriate person which should include the following information:

i) The child’s social history including details of any placement breakdown, all placement moves and of any ongoing contact whether with the former parents or either of them or with siblings;

ii) Any evidence of the child’s wishes and feelings of which the social worker/carers are aware; [there should ordinarily be no direct discussion with the child(ren) about the consequences of revocation, including any attempts made to seek to ascertain their wishes in relation to contact prior to the first directions hearing].

iii) Any evidence of the wishes and feelings of the former parents if known.

iv) Details of the involvement of external agencies including therapy providers, police and other local authorities

B: FIRST HEARING/ DIRECTIONS:

(1) The application shall be listed for Directions before a High Court Judge or before a Circuit Judge sitting as a High Court Judge sitting pursuant to section 9 of the Supreme Court Act 1981. It may be that the Family Division Liaison Judge for each circuit may wish to create a list of Circuit judges approved to deal with such applications in order to avoid delay in the allocation and hearing of the cases.

(2) At the first directions hearing:

(a) The court will decide the preliminary issue as to whether it is in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents. It is envisaged that by the very nature of the application in most, if not all cases, it will be appropriate formally to revoke the freeing order at this hearing. If for any reason the freeing order is not revoked at this stage it should be relisted for determination as soon as practicable.

(b) The making of the order revoking the freeing order will:

i) Revive the original care order

ii) Revive the appointment of any testamentary guardian

iii) Give parental responsibility to the mother

iv where appropriate, in accordance with the relevant statutory provisions, give parental responsibility to the father.

(c) Upon the revocation of the freeing order, the care order having been revived and parental responsibility having been reinstated, the court should give directions for the future management of the case:

i) Consideration should be made as to whether the court should make an order authorising the local authority to refuse contact between the child and the parents

ii) The court should make directions requiring the parents to make any application to discharge the care order/apply for a contact order within 56 days (or such other period as may be specified by the court)

iii) The court should include a request that in the event that the parents, or either of them, issue an application that the original children’s guardian should, if possible, be appointed to represent the child(ren) and all the documentation filed should forthwith be served upon the original or newly appointed children’s guardian.

iv) The court should consider whether any other party to the previous proceedings should be served with notice of the proceedings and, if so, what if any documents should be served.

v) The court should list a further directions hearing at which directions will be given consequent upon any application for discharge of the care order/application for a contact order made pursuant to the direction made at para 2(c)(ii) above

vi) In the event that no application has been made by either parent or any party served under the direction at para 2(c)(iii) (and the court is satisfied that it is appropriate to do so), the court will ordinarily conclude the proceedings by continuing the s34(4) CA 1989 order where appropriate and making any appropriate order for costs.

 

 

 

Stripping out all of the references to the High Court, I would suggest that most of this is going to be applicable to the many applications for revocations of Placement Orders that are forthcoming.

 

 

[If you aren’t aware of this budding avalanche and the reasons for it, it is essentially this: –

 

where an LA applied for a Placement Order and obtained one, but haven’t been able to get an adoptive placement and have since stopped looking, there’s a triple pressure to make applications to revoke such Placement Orders :-

 

  1. The fear that the human rights claims in Re A, S and Others v Lancashire might be broadened beyond Freeing Orders and into Placement Orders.
  2. The murmurings from Ministers that they will be expecting LAs to clear the decks of all such cases, so that there is proper information on which children subject to Placement Orders are actively waiting for placements, rather than the waters being muddied with children subject to Placement Orders where nobody is searching for a placement any longer.
  3. The desire of the LA’s for the same reason, to want to clear the decks so that the figures on ‘average wait for adoptive placement’ is not skewed by children who have been subject to Placement Orders for two years or more when the search has been given up  

 

 

The reason this avalanche has not yet translated into court applications is because nobody really knows whether this will just be a simple standalone “is there a need for the Placement Order to continue if no adoptive placement is being sought?”  case, or whether it will be a reopening of the entire case, fresh assessments of parents, challenges to care plans, contact.  If the former, making the applications will be simple and straightforward, if the latter, issuing them will be like pushing many many new sets of care proceedings into an already overloaded system.

 

 

And yes, there are decent arguments that where a parent believed their child would be adopted and the search has been given up, that this should be back before the Court with ‘all to play for’               ]

“All right then, I WILL give evidence

 

A discussion of the very tricky problem in Re R (A Child) 2012. It never ceases to amaze me how many appeals are not so much about difficult points of law so much as truly peculiar things happening in a Court room and a Judge trying and failing to get an impossible situation right. This is one of those.

 

 

This Court of Appeal decision relates to a very difficult position a Recorder found themselves in, towards the end of a finding of fact hearing in care proceedings.

 

You can find the case here:-

http://www.familylawweek.co.uk/site.aspx?i=ed111044

 

 

The father was facing very grave allegations of sexual abuse, and the two primary witnesses would be the child victim, who was 8, and it was ruled not appropriate for her to give evidence, and the mother, who had refused to give evidence and about whom there was expert evidence to the effect that it would be wrong to make her give evidence against her will.

 

The Recorder delivered judgment, and uttered this phrase, which must have made alternating hearts on the bench sink or soar, depending on the briefs they held

 

 

“One would normally expect me now to go on to say what my conclusions are in relation to the sexual abuse allegations. However I must deal with the issue of fair trial.”

 

I like to imagine at that point, that the pen belonging to the father’s advocate wobbled hopefully on the page, if only just slightly.  The words “Oh, hello!” may have passed, albeit silently, over their lips.

 

8. He then expressed his hesitation in proceeding on the conventional path by saying at paragraph 47:

“What causes me considerable difficulty is what is submitted in paragraphs 169 to 175 by Mr Jackson. The father has an absolute and fundamental right to a fair trial on the issue of sexual abuse. The allegations against him and the findings sought against him are extremely serious.  They depend solely on the assertions of an 8-year old child, who I rule cannot be cross-examined and, as I have been at pains to point out earlier in the judgment, the court is entitled to make findings based on such evidence but must exercise a great deal of care.”

9. He then came to his conclusion in paragraph 50:

“The fact is father has been hit with ‘a double whammy’.  Not one but two of the most important witnesses in this case are unavailable to him for cross-examination. In my judgment, that is unfair or at least creates the perception of unfairness in father’s eyes and probably in the eyes of an officious bystander.  Whatever the findings I have made of father’s presentations of witness, he is entitled nevertheless to a fair hearing.  In the circumstances I am persuaded that the father’s right to a fair trial on the issue of sexual abuse has been prejudiced and that it would be unfair to make the sexual abuse findings sought by the Local Authority. “

Paragraphs 1, 2A, 3 and 5 of the schedule, insofar as they relate to father, were accordingly to be deleted. 

 

 

The Court of Appeal were not terribly flattering about this:-

 

10. Now, with all due respect to the Recorder, I find that a bizarre piece of reasoning and a bizarre conclusion.

11. In these cases the opportunity of the accused parent to cross-examine the eight-year-old informant is effectively zero.  So the Recorder has effectively argued that, because the mother did not testify and thus the father had no opportunity to cross-examine her, that amounted to a breach of his Article 6 rights.

12. It seems to me that, on a proper view, the husband’s litigation case was not prejudiced but rather aided by the absence of the mother, whose evidence was discounted but whose evidence, had it been available, might have been a nail in his coffin.  So for my part, although it is not the issue before us, I think the judge was wrong to hold himself debarred from proceeding to rule on the local authority’s numbered paragraphs of the schedule by the absence of the mother’s evidence.

 

 

But this wasn’t actually the point of the Appeal, we move on

 

13. But I must move to the developments over the lunch hour.  Counsel for the local authority, who had the mother available, explained to her that the judge had announced that he was not going to make adverse findings because she had not testified.  Her reaction was “Very well I will go into the witness box“, and that was the application Miss Greenham advanced to the judge on the return of all at 2.00.  Obviously for the Recorder that was a totally unexpected and difficult situation, and it is always these totally unexpected and difficult situations that are the hardest for a Recorder to get right.

14. The judge decided, having heard argument, that he was not going to take the course that Ms Greenan invited and again he explained himself by reference to the father’s asserted rights as advocated by Mr Jackson.

15. Paragraph 56 is in these terms:

“Mr Jackson submits that if I reopen the evidence now, and hear from the mother on the issue of preoccupation and false memory and on all the other matters he wants to cross-examine her about and here evidence about [S], that I will not be coming to it with an open mind.  I can say until I am blue in the face that I will come to it with an open mind and I would like to think that I would come to it with an open mind but justice not only has to be done but has to be seen to be done and I well understand that Mr R [the father] would have no confidence in any decision I made after hearing fresh evidence because he would always be of the view that I made my views fairly clear and prejudged those issues. This would, in effect, compound his complaint that he has not been given a fair trial and it is for that reason that I agree with Mr Jackson that it would not be fair to father to re-open the issues upon which I have already ruled.”

16. The judge had not, effectively, ruled beyond saying that the fair trial argument precluded him from ruling, and here we see the fair trial argument being deployed equally effectively in the reverse direction.  Earlier it was advanced, “Absent mother; can be no fair trial“.  Then when mother appears it is said “Well, to admit her evidence would preclude a fair trial.”

 

 

I’m sure that you can read between the lines on this and see where the Court of Appeal are about to go…

 

I think, with great respect, that the judge in the heat of the moment reached the wrong conclusion.

17. The question of fairness is objective and not subjective to one of the parties.  It was all extremely unfortunate.  It should not have happened as it did, but once it had happened the judge really had no alternative but to labour further in this rather unpromising field.  I think he had already spent ten days and of course it was unattractive to all that time would have to be found maybe for another two days in order to complete the process.

18. But, as these appeals have demonstrated, there was effectively no other practical choice.  There was no other practical solution and accordingly I would allow the appeal and send the case back with a request to the Recorder to resume the trial process, keeping it within the tightest possible bounds, hearing the evidence of the mother and then in the light of submissions deciding what other evidence he was compelled to hear.  But Ms Greenan has said that she is confident that the re-opening of the case can be kept within tight bounds and it is important that it should be.

 

 

I have to say that I feel for the Recorder here, having delivered a judgment, a key witness then decides that not being content with the outcome, they would wish to give evidence.   It does seem to me that the Recorder may well have been positioned somewhere between K2 and one of those boozers visited by Ross Kemp in “Britain’s most violent pubs”    – or between a rock and a hard place, if you prefer.

 

Don’t hear the evidence of the mother and you get appealed by the LA / the mother.

 

Hear the evidence – after having concluded the trial and given a judgment that finds that the facts against father can’t be safely made out,  and the father is going to appeal you if you alter your findings.  If you don’t alter your findings, the LA and mother are probably going to say that you couldn’t have approached mother’s evidence with an open mind given that you’d already given a judgment which didn’t make the findings against father.

 

 

If I had been faced with that dilemma, I think I would have taken the same way out as Basil Fawlty does in “Gourmet Night” faced with the grisly task of having to introduce a Mr and Mrs Twitchen, to two other dinner guests, one of whom has a facial twitch.  He attempts with “Colonel and Mrs Hall, may I introduce you to Mr and Mrs… phahbarma…”  and when that doesn’t work, fakes an fainting episode.

 

“So sorry, I fainted”

 

 

[I had hoped to put the clip here, but can’t find it online. Anyway, from the same episode, Basil losing it with his car “I’ve laid it on the line to you time and time again.... I’m going to give you a damn good thrashing”]

 

 

http://www.youtube.com/watch?v=78b67l_yxUc

 

fawlty

“Two thirds of children who died of abuse in 2012 could have been saved”

An examination of this very shocking claim from the Children’s Rights Alliance for England report, and discussion of the report itself.

This is a very interesting report, with very weighty contributors. The report is scathing and coruscating of the way that Children’s Rights and issues affecting children is dealt with in the UK, particularly by the Government. I found the tone a bit polemical and overtly political, but there is no doubt that the authors care passionately about children’s welfare and are extremely angry and fearful about the failings they identify.

If you are worried about where we are currently going as a nation, or care passionately about the nation’s children, this report is a must-read. (I did find it too overtly Tory-bashing, but it is still for all of its political slants a meaningful and strong document)

The report is here:- http://www.crae.org.uk/assets/files/s%20Rights%202012.pdf

Here are some of the headline points they open with, and they are shocking.

• Forty-eight children died as a result of ‘deliberately inflicted injury, abuse or neglect’ in 2011-12. Sixty-five per cent of these deaths were ‘modifiable’ – there were factors involved in the death indicating that achievable steps could be taken to reduce the risk of future deaths.

• Between April 2009 and April 2010, Tasers were used on under-18s a total of 144 times. In the previous 12 month period Tasers were used on children 102 times – an increase of 41%.

• Thirty-three children have died in custody in England and Wales since 1990. In January 2012, two children died within a week.

• Official statistics published in November 2012 reported that the number of children going missing from foster care had increased by 19% in the previous year.

• More than 3,000 foster children are estimated to have gone missing in the year up to March 2012. As of 31 March 2012 there were a reported 1% still missing from care.

• In 2011 only 13.9% of children in care achieved good GCSE grades (A* to C) in both English and mathematics, compared to 58.6% of their peers. The attainment gap has risen from 37.2 in 2007 to 44.7 in 2011.

• When they visit a looked after child, social workers are required to speak to the child in private, but only 39% of children say that this happens on every visit, and 5% of children said that this never happens.

• Official figures published in November 2012 revealed that of 6,610 care leavers aged 19, 36% (2,390) were not in education, employment or training. This percentage is at its highest since 2008 (when it was 24%).

Action for Children’s analysis of the impact of Government spending decisions on vulnerable children and families found that family support services have been significantly affected by cuts to local authority spending. Out of 48 family support managers questioned:

• 13% of managers had seen a decrease in the number of hours that staff were able to spend with families and children in the last 12 months;

• More than a quarter of managers (27%) reported a decrease in funding. 4% of services reported a budget increase;

 • 44% of managers reported that the number of new referrals is rising, compared to the previous six months;

• According to almost two-thirds (62%) of the managers, families are facing increasingly severe problems

I was staggered to read here that this country is Tasering children. I knew that the number of children who die from abuse each year is roughly one a week, so 48 is obviously tragic and shocking though not surprising to me. The claim that 65% were ‘modifiable’ is probably what is going to be reported in the papers in lines with the headline I have used for this piece.

Let’s have a look at the specific bits in the report on this:-

Statutory guidance sets out the procedures to be followed when a child dies.

Two processes are conducted to review child deaths.

A rapid response by key professionals is undertaken to investigate each individual unexpected death of a child.

A Child Death Overview Panel will also conduct an overview of all child deaths in the area covered by the Local Safeguarding Children Board (LSCB). Either of these processes can trigger a Serious Case Review.

Child death review processes became mandatory in April 2008, though LSCBs have been able to implement these functions since April 2006.

There were 4,012 child death reviews in the year ending 31 March 2012. This is slightly lower than the number of reviews carried out in the previous year.

Official data shows that there were 784 ‘modifiable’ deaths in England in 2011-12. A modifiable death is the official term given to a death where one or more factors could be modified (changed) to reduce the risk of future child deaths. (This is the same proportion as the previous year – 20% of the total number of child deaths reviewed)

The age breakdown of the 784 ‘modifiable’ deaths is as follows:

• Newborns under the age of 27 days accounted for 45% of modifiable child deaths (an increase of 12% on the previous year)

• Infants aged between 28 and 364 days accounted for 21% of modifiable child deaths

• Children aged between 1 and 4 years accounted for 12% of modifiable child deaths

• Children aged between 15 and 17 years accounted for 9% of modifiable child deaths

• Children aged between 10 and 14 accounted for 7% of modifiable child deaths

• Children aged between 5 and 9 years accounted for 6% of modifiable child deaths.

Older children who died aged 15-17 years were more likely to have modifiable factors identified in their deaths, with 32% of this age group having modifiable factors identified, compared to 18% of children aged under one-year.

Of the 43 children that died in England in 2011-12 as a result of deliberately inflicted injury, abuse or neglect over half (28) were deemed to have modifiable factors.

Six per cent (45) of the 784 children who died where modifiable factors were identified were, or had been, subject to a child protection plan at the time of death; and 50 of the 784 children were or had been subject to a statutory order at the time of death.

The EHRC’s Human Rights Review states that local authority mechanisms for investigating and learning from serious cases of ill-treatment may be ‘insufficient’. The Review reiterates the concerns expressed in the Munro Review that serious case reviews are failing to identify the core issues that prevent child protection professionals from protecting children. In addition, the EHRC concludes that agencies often fail to work together effectively to prevent the ill-treatment of children.

The report notes that in child protection cases there is often a blurring of boundaries between different agencies. This lack of communication means that at-risk children can fall through the gaps.

So the 781 child deaths that were reviewed covered a wide range of causes, and it is the 48 who died from abuse that the report is focussing on. I see no reason to dispute that the figures about whether the deaths were ‘modifiable’ are accurate figures and that the decision as to whether they were ‘modifiable’ (or preventable, in plain English) are accurately taken from the investigation into those deaths.

That is a shocking figure. Not least given that we have all been working under the shadow of Baby P for over four years now, with numbers of care proceedings having gone up nearly 50% over that time.

There is an argument that somewhere along the line since Baby P, perhaps explicitly, perhaps in an underlying and unconscious trend, that the nation has moved in child protection terms quite far along the “child rescue” side of the scale rather than “family preservation” and that underpinning that is the understandable desire amongst social workers, and maybe even Courts not to have another tragedy like Baby P, and that perhaps, buried deep under that is the notion that separating more families is a price worth paying to avoid that.

But we don’t seem to have reduced the numbers of child deaths caused by abuse (at least not appreciably) and this report is decent evidence to suggest that even in the most hyper aware culture of ‘child rescue’ we have had in this country, 28 children died of abuse where this could have been avoided.

If there has been a lurch down the ‘child rescue’ side of the scale, as some commentators suggest, has that actually had any positive benefits for the children of the UK compared to the negative aspects of the system not properly balancing ‘family preservation’?

As I was recently suggesting in my post about Baby P, unless you become as a society so risk averse that any sniff of risk results in removal of children, you can’t necessarily tell which children who are at risk will fall into that dreadful bracket.

It all seems terribly inevitable, when you do what the Press does and work backwards from the death to look at the history.

I’d suggest that this is a media fallacy – yes, if you start from the death and look at all of the concerns the outcome seems terribly inevitable, just as if you only interview people who have WON the national lottery you would establish that buying a lottery ticket inevitably leads to winning the lottery.

You need to be aware of how many people buy tickets and don’t have any life-changing event, to have any idea as to whether buying a lottery ticket is likely to lead to you winning the lottery.

Unless you look at the pool of children who have those sorts of pattern of concerns and bruises and worries who end up being able to be safely managed at home, which of course nobody ever does, you don’t get an accurate picture of what risks, if any, do inevitably lead to child deaths, and which are just professionals weighing up the interest of keeping a family together and managing risk against ‘safety first’ and breaking up a family, and who with the magical benefit of hindsight maybe got that balance wrong with tragic consequences.

A thought-provoking report. Worth a read.

Neglecting neglect

 

The Parliamentary report on child protection, and a discussion of it.

One of the nice things about doing this blog is that some of my visitors will from time to time send me something that I might otherwise have missed.  I knew that this Parliamentary enquiry had been going on, but not that the report had yet been published.

 

You can find it here:-

 

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/137/137.pdf 

 

 

They seem, on the whole, to be broadly supportive of the system, which is no doubt a disappointment to many of my readers.  They do recognise that there are serious problems within it, and make some recommendations.  They particularly felt, as the mainstream media picked up, that the child protection system isn’t a great fit for adolescents and that they get marginalised by the process.

 

 

One of the topics they looked at was neglect  (see also all of the blog posts I’ve done recently on the neglect and neuroscience issue)

 

Neglect

 

Neglect is the most common form of child abuse in England. Having looked at both the criminal and civil definitions of neglect, we recommend that the Government investigate thoroughly whether the narrow scope of the criminal definition contained in the Children and Young Persons Act 1933 is causing problems in bringing criminal cases of neglect, but we have seen no convincing evidence that the civil definition is insufficient.

 

To get a better picture of the scale of neglect, we recommend that the Government commission research to investigate whether similar situations and behaviours are being classified as neglect in different local authorities.

 

There is evidence that children have been left too long in neglectful situations. To tackle this, child protection guidance for all front-line professionals should include an understanding of the long-term developmental consequences of neglect and the urgency of early intervention. Securing positive outcomes and meeting the needs of the child should come before all other considerations, and there needs to be a continued shift in culture so that there is earlier protection and safeguarding of the long-term needs of children. The Government must be prepared to act if there are signs that improvement in the responsiveness of local authorities to neglect is not being sustained.

In cases of domestic violence, the focus should be on supporting the abused parent and helping them to protect their children, but the interests of the children must come first.

 

 

It did seem to me (subject to rigour in how the research is done) that a piece of research on how neglect is managed throughout the country, and whether there are fluctuations in what is considered to be neglect in different regions, is a valid and worthwhile exercise.  Child protection is a massively expensive and resource-intensive undertaking in this country, and if there are lessons that could be taken from the way certain local authorities tackle and overcome neglect, that would be useful information to share around.

 

 

They also looked at the issue of adoption, and in particular the competing current desires of the Government to speed up adoption and the campaigners against ‘forced adoption’

 

216. We endorse the Government’s current policy emphasis on increasing the number of children adopted, speeding up the process and facilitating foster-to-adopt arrangements. Adoption is clearly the preferred route to permanence and stability for some children. However, the same goal can be achieved by other means and it is vital that the Government and those in local authorities continue to concentrate effort and resources on prioritising stability in placements for all children, whether through longterm fostering, Special Guardianship or residential care. We would welcome greater debate on policies which might bring this about and greater encouragement from Government for these alternative solutions. In particular, while we recognise that an artificial limit on the number of times a child can be moved within the system would be unworkable, there should be increased emphasis in central guidance aimed at limiting the disruption and damage caused to vulnerable children by frequent changes.

 

217. We have listened with sympathy to concerns about widespread ‘forced adoption’, and to the very personal and moving stories that often lay behind them. It is evident that there are rogue misjudged cases with terrible consequences for those involved. This should not happen and those affected are right to fight against such injustice. Nevertheless, the weight of research evidence, matched by evidence to our inquiry, concluded that that the balance tended to lie with authorities not taking children into care or adoption early enough, rather than removing children from their parents without due cause.

 

We note that the Minister spoke of “work in progress” to look at “what further safeguards we might be able to institute whereby there is a sort of appeals mechanism”. This would have to be balanced against the further delay to a permanent solution for the child which would inevitably occur as a result.  An appeals mechanism against “forced” adoption is an interesting idea and we look forward to examining the Minister’s proposals when they are published.

 

 

As do I.

 

I’m rather surprised that the Minister spoke to them about introducing a ‘sort of appeals mechanism’ given that there is already an actual appeal mechanism.

 

So either :-

 

(a)   He doesn’t know that there is already  an appeal mechanism

(b)   He is planning to lower the test for appeals in Placement Order or adoption cases, from mistake in law or the Judge being plainly wrong to something lower

(c)   He is planning to introduce a mechanism whereby the Placement Order or adoption order can be appealed at a different stage in the process  (which would have to be later than at present)

OR even

(d)   That there is a plan for an appeal mechanism for Placement Orders which will sit outside of the legal appeal process, i.e that the appeal would be considered by a body outside the judiciary, and contemplating different principles than at present.

 

 

I’m not sure which of those possibilities I find most problematic, but any of them without a lot of proper thought first is worrying.  

 

 

I noted in the passage above that that the Committee touched upon the evidence of Martin Narey

 

215. The importance of permanence and stability is underlined by the shocking evidence we received of the number of times some children move in the course of their time in care.

 

It is clearly damaging to children to move from one form of care to another frequently; and yet we spoke to children who had moved multiple times—in one case up to 16. Martin Narey told us that he had “met countless children who have had 24 or 25 foster placements and 21 or 22 different schools”.396 He added: “We would never dream of doing this to our children and for some children the very best option for them is [...] high quality residential care”.397

 

 

 

Well, I agree with all of the principles set out there, and I am sure that the Committee really did speak to children who had moved up to 16 times, which is an awful and horrific tragedy. I am also sure, sadly, that there have been children in the care system who have had 24 or 25 foster placements.

 

I am somewhat sceptical, to put it mildly, that Mr Narey has met “countless” such children.  I think this is rather on a par with his comments about having asked to see a child’s social work files which were then literally brought into the room in a wheelbarrow.

 

I don’t think this sort of hyperbolae helps, when it comes from someone helping the Government form really important policy.

 

Every child who has multiple placements is a bloody tragedy. Those children who have had dozens or more are a huge tragedy. Every child who has had 24 foster placements is a disgrace   (there might well be really strong underpinning reasons, usually connected with the child’s damaged behaviour but that doesn’t stop the outcome being disgraceful)  and we really should learn as much as possible from it and stop this happening to any child in the future.  But to suggest that it is happening to so many children that Martin Narey has met “countless” is I think rather disingenuous.  

 

Or perhaps my concept of countless is more than Mr Narey’s – it depends on how good you are at counting, I suppose.

 

[All just my personal opinion, perhaps Mr Narey really has met over a thousand children, which would be around where I’d consider a number to be countless, who have had 25 placements.  I guess if he is disputing my suggestion that he hasn’t met ‘countless children’, he would need to show that he had met a significant number, which would mean him counting them, so they couldn’t then  be countless...]

 

Let me be plain, I consider that a single child who has 24 foster placements is a child too many. I just don’t care much for hyperbolae when giving evidence.

 

The Committee also talked about newer and more specialised forms of abuse and risk, they considered the technological side of things with paedophilia over the internet, child trafficking, child prostitution, forced marriage, and suggested that there was a need to build up specialist expertise in this area, and for those authorities who were encountering it to share their expertise with others

 

We recommend that the College of Social Work take a leading role in co-ordinating and promoting awareness of CPD training in specialised forms of abuse and in encouraging other disciplines to participate in relevant courses. For more general use, if the guidance on specialised forms of abuse is to be deleted from Working Together, the Government needs to make clear where such guidance will be found in future and how it will be updated and signposted to social workers and other professionals. (Paragraph 133)

 

17. We are also concerned that professionals faced with a specific type of abuse with which they are not familiar should have an identifiable source of expertise to consult in person. Local authorities should nominate a specialised child abuse practitioner to lead on such matters. Where an authority has a low incidence of a particular form of child abuse, they should be able to draw on the expertise of nominated practitioners in other authorities. (Paragraph 134)

 

 

 

I think the most controversial paragraph, and certainly the one which will provoke ire in some quarters, will be this one:-

 

 

We welcome the research by Cafcass into applications for care orders and recommend that this work be repeated on a regular basis. An assessment of the reasons behind the local variability in care applications is needed. We also believe that it is essential to promote a more positive picture of care to young people and to the public in general. The young people to whom we spoke were generally very positive about their experiences, including those who had spent time in children’s homes. This is backed by academic research on outcomes. Ministers should encourage public awareness of the fact that being taken into care can be of great benefit to children.

 

In the words of Bill Hicks – “it’s not a popular opinion, you don’t hear it very often”

 

 

Perhaps in that vein, the next Commons Committee will be on “Assessing the Costs and Benefits of using terminal ill people as stunt doubles.”

 

[And I know that makes no sense to you whatsoever if you’re not familiar with the work of Mr Hicks  “I know to a lot of you this might sound a little cruel… ‘Aw Bill, terminally ill stunt people? That’s cruel’…. Well hear me out..”]

Neurology, new neurology, old neurology, neurotic neurology… let’s have a heated debate!

Am beginning to think that I should move into the new field of paediatric neurology law blogging, as it seemed very popular last time.   [Although I am going to have to work harder on titles if I have to do a fourth, because I'm running dry]

This is my third post on this issue.

The last one was here:-

http://suesspiciousminds.com/2013/01/14/semantics-pedantics-and-neuro-mantics/

 

Which was about the Wastell and White report suggesting that too much political weight is being placed on headlines of neuroscience research when the actual research is more fragile than the headlines would suggest.

You may recall that the thrust of that was whether the impression that is being disseminated that neuroscience is at one on the principle that neglect in early childhood can cause longstanding harm to children, possibly even irreparable harm in the first years of life, is a genuine one on which important decisions can rightly be taken, or whether there is a schism within neuroscience which might need resolution before we start constructing metaphorical housing estates on those foundations.

The key debate seems to be about plasticity of the brain in an infant – is that damage long-lasting and irreparable, or does the brain form new structures and overcome it (obviously ideally with the neglect ceasing and positive parenting being in place) ?

I don’t think anyone would argue that children suffering neglect is BAD, the issue here is whether science is now showing that it is FAR MORE BAD than we had previously believed. 

As a result, a kind subscriber has sent me this new report “The Foundations of Life” compiled by Harvard University, which is firmly in the Family Justice Review camp, of neglect causing much greater and more irreparable harm than had earlier been understood.

My initial reading suggests that this is not new research, or commenting on fresh experiments or studies, but again a drawing together of existing research and formulating conclusions from it.

That report can be found here: -

http://developingchild.harvard.edu/index.php/resources/reports_and_working_papers/foundations-of-lifelong-health/

There is a summary of essential findings, which I shall set out here.

(The analysis of whether those findings are made out from the research is a task beyond me, but some of my new readers who have lovely neurosciency brains will probably set to work on considering that).

Advances in molecular biology, and genomics have converged on three compelling conclusions:

Early experiences are built into our bodies.

Significant adversity can produce physiological disruptions or biological “memories” that undermine the development of the body’s stress response systems and affect the developing brain, cardiovascular system, immune system, and metabolic regulatory controls.

These physiological disruptions can persist far into adulthood and lead to lifelong impairments in both physical and mental health.

Messages for Decision-Makers

The biological sciences have two clear and powerful messages for leaders who are searching for more effective ways to improve the health of the nation.

First, current health promotion and disease prevention policies focused on adults would be more effective if evidence-based investments were also made to strengthen the foundations of health in the prenatal and early childhood periods.

Second, significant reductions in chronic disease could be achieved across the life course by decreasing the number and severity of adverse experiences that threaten the wellbeing of young children and by strengthening the protective relationships that help mitigate the harmful effects of toxic stress.

A New Framework for Early Childhood Policy and Practice

The following four interrelated dimensions offer a promising framework for innovative approaches to improving physical and mental well-being. The biology of health explains how experiences and environmental influences “get under the skin” and interact with genetic predispositions, which then result in various combinations of physiological adaptation and disruption that affect lifelong outcomes in learning, behavior, and both physical and mental well-being.

These findings call for us to augment adult-focused approaches to health promotion and disease prevention by addressing the early childhood origins of lifelong illness and disability.

From the report itself, this is interesting – the suggestion that child abuse should start being treated as a public health issue, and treatment programmes designed and delivered.

Child Welfare.

For more than a century, child protective services have focused on issues re¬lated to physical safety, reduction of repeated injury, and child custody.

Now, recent scientific advances are increasing our understanding of the extent to which the toxic stress of abuse, neglect, or exposure to family or community violence can produce physiological changes in young children that increase the likelihood of mental health problems and physical disease throughout their lives.

Based on this heightened risk of stress-related illness, science suggests that all investigations of suspected child abuse or neglect should include a comprehensive assessment of the child’s cognitive, language, emo¬tional, social, and physical development, followed by the provision of effective therapeutic services as needed. This could be accomplished through regularized referrals from the child welfare system (which is a mandated service in each state) to the early intervention system for children with developmental delays or dis¬abilities (which provides services under an en¬titlement established by federal law).

Although the most recent federal reauthorizations of the Keeping Children and Families Safe Act and the Individuals with Disabilities Education Act both included requirements for establishing such linkages, sufficient funding has not been provided, and the implementation of these requirements has moved slowly.

The availability of new, evidence-based interventions that have been shown to improve outcomes for children in the child welfare system168 underscores the compelling need to transform “child protection” from its traditional concern with physical safety and custody to a broader, more science-based focus on health promotion and disease prevention.

The Centers for Disease Control and Prevention has taken an important step in advancing this issue by promoting the prevention of child maltreatment as a public health concern.169,170

I remain in the dark as to whether the current path we are on, of policy decisions being taken, and perhaps individual ones too, on the basis of neglect being irreparably harmful to infants and that our timeframe for making decisions is much more narrow than previously believed, is the right one and that we have some mavericks suggesting otherwise, or whether the current trendy thinking on that is wrong and the naysayers are actually pointing out that this emperor has no clothes on.

I would like someone to find out. Or perhaps we lawyers just have an over-optimistic view of the social sciences, and think that there is a definitive answer out there to be found out (like there really is a definite number for the co-efficient of the expansion of brass and that every scientist in the field would agree on what the number is, and how you could prove it). Maybe there isn’t.

Perhaps the truth of the world of neuroscience is that we are still stumbling in the dark and that every theory is going to have its proponents and opponents.

In which case, we perhaps ought to know THAT, and not be treating the findings and theories of neuroscience as though they represent the final word on any given subject.

When to apply for prior authority (and how long the LSC thinks assessments take)

There has finally been some guidance published about this vexed issue. You may recall previous anguished blogs by me about this, most particularly that the last system (“don’t apply for prior authority as it will be refused, and we may arbitrarily slash the number of hours we will pay you for, but you won’t know that until the expert has actually invoiced you”) wasn’t really that workable if you factored in that (a) experts actually wanted to be paid and (b) solicitors actually wanted to get the money to pay them from the LSC, rather than out of their own pocket. Selfish of both of them, I know.

http://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/prior-authorities-for-experts-in-family-cases?dm_i=4P,18921,AV9ZJ,45QDV,

1 The LSC’s Standard Civil Contract states that there is a contractual right to seek or obtain prior authority only where: • the rate sought exceeds the codified rates introduced in October 2011, or • the item of costs is unusual in its nature or is unusually large. The guidance includes: • examples of factors that may indicate exceptional circumstances apply • benchmarks of ‘unusual’ hours below which prior authority should not be sought • ranges of hours within which prior authority applications have typically been granted for psychologists and psychiatrists, which represent the most commonly used expert types • details of expert witness information required on detailed assessment.

The guidance also confirms that prior authority is not necessary in relation to drug and alcohol tests – provided that the tests carried out reflect what has been directed in a court order. Case-by-case assessments ‘Typical’ hours outlined in the guidance are not caps. They are intended to help providers make case-by-case assessments about when they can submit prior authority applications. Prior authority itself is not a limit on the number of hours that may be carried out by an expert. Additional expert work hours may be justified on assessment, at the end of the case, to the relevant assessing authority. This may be either the LSC or the court

You are probably already spotting the gap in this new guidance. There is no sentence anywhere that suggests that the solicitor will get paid in full by the LSC for any expert report that comes within hourly rates and the benchmark number of hours. So there is still an element of uncertainty and risk. Hoorah.

But at least we now have the secret benchmarking of hours that the LSC claim to have been using. (I strongly suspect that the actual policy was just ‘cut them in half’, but I am a nasty cynical piece of work and that is just my own opinion based on lots of anecdotal observation)

They consider costs of more than £5000 per funded client to be unusual and need prior authority.

The hours above which prior authority should be applied for are:-

 

Pscychologist  (including child psychologist)  20 hours (for one party)  30 hours (for more)

 

Pscyhiatrist (including child psychiatrist)  15 hours (for one party) 25 (for more)

Independent social worker 30 hours (for one party) 40 (for more)

 

Radiologist (10 hours)

  These benchmarks include all aspects of expert service provision and not just the assessment of parties An item of costs is unusual in nature where, for example, more than 2 parties are to be assessed. The number of hours allowed on prior authority is not a cap on the work that may be done, it is authority for an amount of work based on the known relevant facts of a case at a particular time. Providers are always able to seek to justify on assessment/taxation why a greater number of hours were required

Hmmm, interesting. I’m not sure which psychologists they have identified who can read two lever arch files, assess a parent, prepare a report, possibly attend an experts meeting AND Come to Court to give evidence in under 20 hours, to establish that this is a reasonable level. [Given that most experts a year back were estimating 35 hours to WRITE the report, which I know was egregious padding and part of why they’ve been cut off at the knees, 20 hours seems very low.]

I am also a bit puzzled as to why a paediatric report, which is generally about a tenth of the size gets 75% of the hours, and why it takes an ISW 50% longer to assess a parent than a psychologist.

Also I am intrigued as to how radiologists in many of the cases I have blogged about in 2012 could be expected to have done all of the necessary work in 10 hours.

The guidance also clears up once and for all that Independent Social Workers will only get £30 per hour. You may be aware that there was a separate hourly rate of £65 per hour for “risk assessment” and many had simply attempted to switch over to that. You won’t be able to claim for “risk assessment” now in any cases that aren’t sexual abuse. [This is going to be very problematic for the important role of conducting assessments following findings of serious physical abuse, which is a very specialised piece of work and will now be either £30 an hour or farmed out to expensive and less timeous psychologists]

The Ministry of Justice and the Legal Services Commission have published guidance on how expert services identified as specialist risk assessments will be paid. The guidance highlights the factors that may arise in a case which would point to it being appropriate to pay the risk assessment rate.

Factors that may typically point to the expert service being that of a specialist risk assessment expert include where:

a. The court order specifies that a risk assessment is required; and

b. The work to be done is over and above that requiring independent social work expertise, for example where: • There is a substantiated criminal allegation relevant to the case in the immediate background of the case (such as a conviction or pending proceedings for a sex offence); and • A finding of sexual abuse relevant to the case has been made by a court

c.the report is specifically required to address the risk posed as a result of the above factors.

The guidance also clarifies that in considering claims where independent social work services are provided in non-family matters the LSC will have regard to the rates set out in Community Legal Service (Funding) (Amendment No2) Order 2011. Where there is no comparable rate in the funding order – for example for a social worker providing social work services – the LSC will have regard to the comparable rates for independent social work services in family matters introduced in May 2011.

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