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Getting an expert report in private law proceedings

 

The Court of Appeal (almost a year after the High Court ruled otherwise) have decided in JG v the Lord Chancellor and Others 2014, that a Court can lawfully decide that the costs of an expert report be bourne by one party (the one who is receiving public funding) rather than split between everyone.

 

I wrote about the original decision here http://suesspiciousminds.com/2013/04/11/not-with-a-bang-but-a-whimper/  with quite a bit of disappointment in my heart, so I am pleased that the Court of Appeal have taken a different view.

 

Quick bit of context first – up until LASPO  (Legal Aid, Sentencing and Prosecution of Offenders Act) came into force, most private law proceedings (i.e mum and dad arguing about where a child should live, or how much time the child should spend with each parent) had at least one of the parents, sometimes both, receiving legal aid (free legal advice). That legal aid could be used to pay for expert reports  – for example, if there was a dispute over paternity, a DNA test, if one person alleged the other had an alcohol or drug problem, testing, if the child was displaying unusual behaviour an expert to help understand that.

After LASPO, people now only get legal aid in exceptional circumstances  – it doesn’t matter if they are on benefits, or have learning difficulties, they won’t get legal aid unless they fit some very narrow prescribed criteria.

Next bit of context – in particularly tricky cases, the Court appoint a Guardian (which we call a Rule 16.4 Guardian, after the bit in the Family Procedure Rules that governs it) to assist the Court in reaching decisions. The Rule 16.4 Guardian GETS legal aid.

That led to a situation in which if an expert report was needed and the parents could not afford it, the Court would order that the costs be met entirely by the Rule 16.4 Guardian (and hence legal aid).  The Legal Aid Agency cottoned on to that, and started refusing to pay (even after the expert had done the report and the Guardian’s lawyers had written the expert the cheque, leaving the lawyers out of pocket and thus reluctant to take on such cases in the future).   One such refusal was judicially reviewed, and Ryder J (as he then was, he is now Ryder LJ) refused the judicial review and said that the Legal Aid Agency was entitled to take a position that any expert costs should be divided equally between all of the parties and that the costs should not all be loaded on to the Guardian’s public funding.   [It is a little like three people going out to dinner, and putting the bill on the person who has an Expense Account, if that makes sense, and then the firm paying the Expense Account saying  "Hey, we don't mind paying for YOUR dinner, but not for the other two"]

Ryder J did say that in an exceptional case where the parent could not possibly pay anything towards the cost of the report, and the Court considered it was vital, things might have to be looked at differently.

So, the Court of Appeal disagreed with Ryder J’s decision – but not in a way that gives carte blanche for all reports to be loaded on to the Guardian’s public funding certificate (actually the Child’s) and the parents to pay nothing. It is a bit more nuanced than that.

http://www.familylaw.co.uk/articles/jg-v-the-lord-chancellor-and-others-2014-ewca-civ-656

 

There were basically two sides to this (because it had now become an issue about principle, rather than the parents own case) – the Law Society, arguing that the Court should have the power to decide how costs should be apportioned and particularly where failure to have the report would breach article 6 (right to fair trial) or article 8 (right to family life),  and the Lord Chancellor – arguing that this should only be in a situation where the Legal Aid Agency deemed itself that it was appropriate. It’s a fundamental question of who is in charge, the Court or the Legal Aid Agency.

 

Law Society to throw first

a) The appellant’s and the Law Society’s case on the general question
67. The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.
68. It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.

 

Lord Chancellor, you require forty  (sorry, to go next)

b) The Lord Chancellor’s case
69. The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.
70. In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:
i) “a party’s means, assessed following a robust process, are such that he or she cannot afford to pay for his or her share of the report”
and
ii) “an order for equal apportionment would involve a breach of a party’s Convention rights in the family proceedings because it would prevent an expert report which the court considered necessary to the proper resolution of the case from being adduced”.
If the two conditions were satisfied, the Lord Chancellor’s case was that the court should still order a single joint expert but could visit a greater share of the costs on the legally aided party than normal, although whether the legally aided party would have to pay all the costs would depend on the circumstances.

 

The Court of Appeal then distil the arguments down to common ground and areas of difference

c) Points in common and points of difference
71. It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.
72. Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.

 

 

A major part of the argument was whether the report being commissioned was really one being commissioned solely on behalf of the Child, or whether it was really one for the benefit of all parties and just pretending to be a sole instruction to get the free funding   (To go back to the dinner analogy – was this really a business meeting that the Expense account could pay for legitimately, or were two people getting a free lunch?)

The Court of Appeal consider some hypothetical situations but eventually come down to this

 

84. Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.

 

But going on to say that even if it is really a joint report, and the parents can’t pay, the Court still have to consider what is right and fair

 

When the expert is not solely the child’s expert
85. If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.

 

The Court then looked, in a lot of detail, about whether there was a presumption in law that any report would have the costs split equally -  there is a provision in the Family Procedure Rules that says that this is what will happen in the absence of the Court saying otherwise.  Does that mean that the Court have to have reasons for deviating from an equal split, or does it just mean that if the Court is silent, that’s what happens?

92. This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert’s fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a “normal rule” that the cost is to be apportioned equally, any more than the Calderdale case did.
93. None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of section 22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.

 

That’s quite dense, but basically, what the Court of Appeal say there is that there may be circumstances (even if there is no issue over the parties ABILITY to pay) where the costs of the report might be met by one party exclusively or where one party may make a larger share, and the Court has the legitimate power to do that.

[That, to make it explicit, is the Lord Chancellor losing an argument]

 

Next – what about a situation where the Court thinks that it is FAIR to split the costs equally, but one or more parties has resource issues (impecuniosity – or in layman’s terms, they are skint)

95. In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.

 

Condition 1  (remember these are the conditions proposed by the Lord Chancellor) – an equal split would involve a breach of the party’s convention rights  – there’s a lot of this, so I have skipped to the conclusion

108. The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.
109. It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

 

It will be necessary for the parties to persuade the Court that an equal split (if that means the report can’t be obtained) would result in an article 6 or article 8 breach, but that’s not as much of an uphill struggle as the Lord Chancellor would have hoped – the parties start partway up that hill.

I reckon the Lord Chancellor   (apologies for not continually putting that title in quotation marks, since he isn’t a Lord Chancellor in the way that any lawyer or historian would recognise the role) lost that one as well

 

b) A very exceptional case
110. It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

 

That’s an indisputable loss for the Lord Chancellor.

 

c) Impecuniosity
111. It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.

 

There’s a risk of course, that the Court spends so long gathering information about whether or not someone is genuinely impecunious (as opposed to not keen on paying £2000 for a share of a report, which would apply to pretty much everyone) that the child’s welfare is prejudiced by delay.  There’s a difficult balance to be struck here.

112. Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).
113. A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.
114. The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.
115. The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”
116. I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it – and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.
117. Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.
118. It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.
119. The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.

 

I wouldn’t call that an outright victory for either side – it seems that before a Court decides that a party is impecunious (and thus couldn’t pay an equal share, and thus the report wouldn’t be obtained) it has to decide what information about finances is reasonable to inspect – if they can be obtained swiftly then it would be considered before the expert report is comissioned, if not, then the Court may make an order that the report be paid out of the Child’s public funding, and then remedy that with a later order once the financial information is available.

 

In the individual case, the Court of Appeal decided that it was right that the costs should have been met through the Child’s public funding /legal aid, and that they differed from Ryder J’s decision.

 

For broader cases, the Court of Appeal say this

 

132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out.

 

[All of this boils down to a Britney Spears type exhortation -  You want an expert? You want a 16.4 guardian? You want the costs of the expert to be paid by the child's legal aid? You want the court to say you're impecunious?   You better work bitch]

 

 

 

 

 

Donating your… ahem… time

 

The High Court have recently dealt with another case (there have been a lot, relatively speaking) where a man (DB) fathered a child for two women in a relationship and later wanted to have more contact than the two mothers had in mind.

 One of the contested issues in the case was whether the man had (as he said) offered to father a child to be raised by the two women but play a part in the child’s life, or whether (as both of the mothers  said) he was basically being asked for nothing but his biological contribution.

 It was common ground that the child had been conceived in the usual way, rather than by artificial insemination, the argument was about whether the common understanding was that this was where DB’s role ended.

 

Re SAB (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/384.html

 

One of the big lessons from this (as indeed from most of the previous cases about this sort of situation) is that if you are embarking on a plan of conception that is something out of the ordinary, firstly make sure that all of the adults involved have exactly the same understanding and thoughts about what is intended, and secondly get something down on paper that reflects that.

 

This case was complicated further by the fact that the father DB, and the biological mother AB, had previously had a romantic and sexual relationship, which was over by the time of the conception of the child.

 

The tension that this must have brought to bear on the whole dynamic probably wasn’t helped when DB engaged in some ‘sexting’ and sent a photograph of his  [Menswear Department]  in a mobile phone text. This text and image ended up being received by AB. 

 

DB said later that it was meant to go to an entirely different woman, hopefully one who was a willing or keen recipient of such image. In fact, he had never sent it to AB and wasn’t sure how it had ever reached her.

 

One can appreciate how AB, and the other mother CB might have misconstrued his intentions there.  The Court accepted that this was entirely an accident and not an attempt to rekindle his relationship with AB or cause tension between her and her partner CB.

 

In any event, what happened was that from going from a voluntary arrangement whereby the father was seeing his child in the first year, contact was completely ended, and the Court needed to become involved.

 

The tensions, already high, were not helped by a long paragraph in a statement filed by the father   – this, whatever it was, ramped up the temperature so much that it led AB to express the feeling that she hated him. 

 

19. Throughout this hearing, which has now spanned three days, I have, frankly, been puzzled as to the intensity of the opposition to contact now, when, until a year ago, it was happening relatively smoothly and given that it was accepted that DB had not, himself, sent or caused the obscene photograph to be sent. It was very difficult to discern any other clear explanation in the facts and circumstances of this case as to why attitudes now appear to be so entrenched

  1. I have read, of course, the third statement of DB, originally signed and dated in November 2013. That included at paragraph 9 a paragraph of some length, and I have been shocked at what DB thought it appropriate to state in that paragraph. Nothing, however, had been said about it throughout the first two and a half days of this hearing. Almost at the very end, whilst she was asking some questions of the child’s guardian, Mrs Susan Scott, this morning, AB referred to her “hatred” for DB. Apparently she had used the word “hatred” in some meeting or meetings with Mrs Scott, but it was certainly the first time a word of such intensity and violent emotion had been used within the courtroom. I enquired of AB why she felt such “hatred” and it emerged that it stemmed from what he had chosen to say in paragraph 9 of his first version of that statement.
  1. As a result, that statement has been edited so as to remove altogether the highly offensive parts of paragraph 9, and a fresh version, with a much shorter paragraph 9, has been signed by DB today, 23rd January 2014. All the copies in the courtroom of the earlier version with the longer paragraph 9 have all been returned to Mr Shelton, counsel for DB, who will ensure that they are totally destroyed. I am not going to make any reference whatsoever to the offensive parts of paragraph 9. But it tragically appears that AB expresses a feeling of hatred toward somebody for whom she previously felt friendship and affection, in considerable measure because of his foolish lack of judgment in saying such unnecessary, deeply offensive and highly intimate things. As I observed earlier this afternoon, however, it would be very wrong for decisions to be made affecting the entire childhood and, indeed, lifetime of this tiny, vulnerable child on the basis of one foolish misjudgment of that kind.

 

I rather like the pragmatic solution that the Judge hit upon for this. Rather akin to Basil Fawlty dealing with Bernard Cribbins’ flawed Spanish omelette  (“There, I’ve torn it up, you’ll never see it again”).  I think there’s a line in one of A P Herbert’s imaginary judgments about a judgment given by a High Court judge having been locked in a trunk, secured with chains and thrown into the depths of the ocean so that nobody need ever refer to it again.

 

As ever, the Bard puts it well

 

“I’ll break my staff. Bury it certain fathoms in the earth. And deeper than did ever plummet sound. I’ll drown my book”

 

[Although, hands up anyone who is NOT insanely curious about what was said in paragraph nine. The guess would be that rather than discussing the facts or issues or principles, he said something that was sticking the boot in and personal and offensive to AB. This is what lawyers sometimes call "playing the man and not the ball"  - a term borrowed from football, where the intention is not in a tackle to get the football but just to hurt the other person] 

 

On the whole discord about whether father was a “sperm donor who would walk away” or an intention to father a child and play some role in that child’s life, the Judge said this

 

  1. There is, of course, one major conflict of fact in this case, namely, whether or not it was agreed that the father would simply be a “sperm donor” and then “walk away” or whether, as the father says, there was a joint intention to conceive a child who, it was anticipated, would have some relationship with both his parents. I can only resolve that conflict on what lawyers call a balance of probability. I am not at all persuaded on a balance of probability that DB did agree, as is alleged, that he would merely be a sperm donor. That does not seem to me to fit either his personality or his personal history. As I have said, his situation was that it had been a source of sadness and regret to him that he had been unable to have a child or children throughout a marriage of some length due to infertility on the part of his wife. It was also a source of the utmost regret and guilt to him that he had never had a proper relationship with his one daughter, L. It seems to me highly unlikely that he would have been willing on the one hand to father a child and on the other hand to completely “walk away”.
  1. Further, there are a number of facts in the case which do not seem consistent with the notion that, having had intercourse and conceived a child, he would then “walk away”. Indeed, it is agreed that in September 2011 he and the mother went on a camping weekend together in the Yorkshire Dales where the two of them shared a tent. They did not have sexual intercourse on that occasion but nevertheless the circumstances were obviously ones of some intimacy.
  1. As I have said, after the birth of S the father was permitted to see S quite regularly and amicably. So there was certainly no concept of “walking away” in play for an appreciable period of time after the birth of S. Further, in such texts as are available, nowhere is there an assertion that he had agreed to “walk away”. As I have already said, some of the texts are, indeed, quite affectionate; and even where the mother did ask for some time and space away from him, she did not put that in terms that he had agreed always simply to be a sperm donor and walk away.
  1. It may be that in this case there was, as so often in these sorts of situations, a lack of clarity and understanding between them. It may very well be that A and C, in the spring and early summer 2011, were looking for a mere “sperm donor” as RS might, indeed, have been. But I cannot accept that when DB had intercourse that night he had, himself, agreed that his role was simply to be that of a sperm donor.
  1. In any event, as authority of the Court of Appeal makes clear, even somebody who has agreed to be a mere “sperm donor”, unless anonymous, should not necessarily be excluded from the life of the resulting child. However, it is not necessary to wrap up my decision in this case by reference to authority. It is absolutely clear that cases of this kind are highly fact specific. It is absolutely clear that there is only one legal principle in play, namely, that the welfare of the child concerned must be the paramount consideration.

 

 

It is clear that feelings were running high on this one, and the Judge makes some very helpful remarks, applicable to other cases about what the role of the Court is in this regard.

 

  1. The principal reasons that A and C advance against any contact are these. First, A, in particular, clearly has a very strong view as to parental autonomy, and it is her view that she and C (who also has parental responsibility for S) alone know what is best for their child and that they, and they alone, should decide. Whilst I have some appreciation of that point of view, it is, of course, not the law, and it is precisely because an individual parent, or in this case two mothers, do not have that degree of autonomy that courts in the end do have to decide the outcome of cases such as this.
  1. Next, they stress that from the outset the agreement was that DB would simply be a sperm donor and walk away. I have already explained that I cannot accept that there was agreement to that effect. It may have been their hope and expectation, but it certainly was not that of DB.
  1. Next, A in particular refers to the intensity of her feelings now in relation to DB. As I have said, earlier today she used the word “hatred”, and her overall position is that it could not be in the best interests of S to be brought up in a situation of conflict between the adults.
  1. Allied to that is a similar, but discretely different, point, namely, that in any event she, or they, cannot bring themselves to promote the image of DB as the father and present him in a positive light.
  1. So their overall position is that this would simply be a situation of such stress and intensity of emotions that they would inevitably impact upon S and be damaging to him.
  1. I do, of course, appreciate and understand all those arguments. They are often deployed in situations where there is conflict and disagreement as to contact. But the argument and consideration the other way is the real benefits that S may gain throughout his childhood and, indeed, into his adult life from having proper knowledge of, and interaction with, and some relationship with his father.
  1. Of course, at this moment, when he is aged 20 months and a mere toddler, none of this is immediately apparent. No one could suggest that S is suffering at this moment from the absence of his father from his life. But it is in infancy that the seeds should be laid for slowly developing a relationship in the most natural of ways as the child grows up. The position of the mothers is that S can, of course, see his father when he is older if he wants to do so. But that would not happen in that spontaneous way, at any rate for many years, unless he has grown up with knowledge of, and some relationship with, his father.

 

 

The Judge opened his judgment with this, but I have moved it for my purposes to the end

 

  1. In a letter written as long ago as 23rd August 2013 the mothers forecast that:

“Unfortunately, it is becoming increasingly clear to ourselves that this awful situation will just have to play its course within the court system.”

 

That is what has happened and, despite repeated attempts and encouragement on my part and my affording ample time and opportunities in which to do so, the parties have, unfortunately, not been able to narrow their differences and agree an outcome. Nonetheless, it is very clear that the three adults involved in this case are all, if I may say so, very worthy, caring and decent people, and it is a matter of the utmost sadness that there is currently so great a rift between them.

 True enough. Sad when three decent people end up in such a  situation.

So, three golden lessons to avoid it happening to you / your client

 

  1. Make sure you are all on the same page, and have it written down, before embarking on an unorthodox conception

 

  1. When you write a statement and you play the man and not the ball, bear in mind that this might cause significant problems in due course, and if it has really inflamed things too much, an offer to remove the offensive remarks is not a bad idea. In fact, just don’t play the man and not the ball. It never works.

 

  1. If you think that hell hath no fury like a woman scorned, imagine taking two irate mothers on at once…

 

Get it in writing, always get it in writing.

 

Or as Sam Goldwyn didn’t say  “A verbal contract isn’t worth the paper it’s written on”

The work of Guardians in care cases

 

One of my regular readers, Boxerdog, asked me to have a look at the CAFCASS commissioned research into the work of Guardians in care cases – it has been a bit of a week, and ordinarily this would have been much higher up my agenda.

Anyway, the report is here :-

https://www.cafcass.gov.uk/media/174659/sdcrvnafil008/caf_home$/rcafPRiordan/My%20Documents/Documents%20for%20the%20internet/FINAL_VERSION_Cafcass_-_The_work_of_children%27s_guardians_in_care_cases.pdf

 

The report sets out to answer two questions

1. What work was undertaken by Guardians?

2. When in the proceedings did that work take place?

 

So the fact that the research isn’t particularly helpful is the fault of the persons framing those parameters and questions, rather than flaws with the research itself.  I don’t think many people’s big unanswered questions with CAFCASS were these, but more about were they a genuine check and balance to the State, were they genuinely representing the voice of the child and looking at things in the round rather than the focus on “safeguarding” which seems to have crept in, was their work considered helpful and useful by other (shuddering at the word) stakeholders in the process – the children, the parents, the Judges?

 

But anyway, those are the questions we got. The answer to the second is “Mostly at the beginning” and in the first three months, chiefly.  Of course, most of the really important stuff in care proceedings is happening at the end, as assessments are completed, decisions are being made and the views of children about the range of options for their future is being gathered, so some might think that the balance here is a bit askew.  As a counterpoint to that, the meeting of the parents and relatives, reading the court papers, deciding on an expert and questions, and reading the social work files (ha!) all happens at the beginning, so I am perhaps being slightly unfair.  It depends whether the ‘front-loading’ means  “More at the front, but quite a bit all the way through”  or “almost all at the front and very little thereafter”

 

The report shows that CAFCASS met with the parents in 90% of care cases  (giving the benefit of the doubt, there ARE SOME parents who don’t involve themselves in any point in the proceedings, think 10% is rather high estimate of that) and met with/observed the children in 95% of care cases

 

Contact with the child
: the guardian had contact with the child in 95 per cent of cases. Four of the five cases in which there was no contact had some features in common, notably previous proceedings in respect of older children and the child being 0 years of age. In the fifth case the court found that the significant harm threshold was not met. The mean number of contacts per case was three, and the range was 0- 13 contacts. The type of contact was influenced by the age of the child. Thus, the guardian met with the child in 33 per cent of cases, but in every case where the child was aged 12 or older. Fifty seven per cent of children in the sample were aged four or under, the guardian observing children in this age group, in the presence of a parent, carer of foster carer, in 92 per cent of cases. There was telephone contact between the guardian and the child in nine per cent of cases
Not blaming individual workers for this, it is a shift in our times and the organisational priorities and how workloads are managed. But when I started, if a Guardian had visited the child 3 times during the course of the proceedings, they would have been SLAUGHTERED in the witness box. I remember on rare occasions seeing a Guardian ad Litem (as they then were) get completely taken to the cleaners for having made just 3 visits.  And that was in the days when care proceedings were shorter  (yes, before we had all of the protocols and PLOs to reduce the duration of care proceedings, they were actually quicker than 55 weeks) and more pertinently, before the Human Rights Act and article 8 was at the forefront of our minds.
What the report doesn’t look at, of course, is whether that contact is sufficient for the purpose of representing the child and being their voice in proceedings. As we diminish the role of independent experts in the court process (by a combination of cutting their fees until they don’t want to do it, and raising the bar on getting permission from the Court to instruct them), a good, solid, robust, inquiring and genuinely independent Guardian with no axe to grind other than “what does this child want, and what is best for them?” becomes a vital check and balance to the State, and this low-level of input doesn’t always provide for that.
Not the fault of individual Guardians – there are damn good ones who are very committed and work very hard, and rightly pull Local Authorities up on bad practice or decisions or unfairness, but the organisation s a whole decided to try to manage the increased volume and workloads by spreading the individual Guardians more thinly, and that has had profound knock-on repurcussions.
Back when I started, if you had a new baby born and there had been previous proceedings on a brother or sister, the first thing anyone would read from the old papers would be the Guardians report, which would tell you everything you needed to know, it would set the scene and give you all of the story of what had happened in the case. (you might agree with the final recommendation, you might disagree with it, but the report would tell you the story). I haven’t started with the Guardian’s report for many years now.

 

Rearrange these three letters – F, W, T

This is the private law case of Re C (A child) 2013, and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013    (which also makes me pang for a Court of Appeal authority involving a child named E, where wind plays a major feature, so they can call it RE-E-Wind  – when the crowd say Bo, Selecta)

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1412.html

The case involves a five year old boy, C, who became the subject of residence and contact applications, his parents having separated.

  1. The order complained of was made in the county court on 6 March 2013 in Children Act 1989 proceedings issued by mother in March 2012. The order prohibited father from removing his son from the care of mother or from his primary school and provided for indirect contact between father and son in the form of letters, cards and small gifts. It follows that direct contact was refused. In circumstances which I shall describe the order was the culmination of a series of serious procedural irregularities which caused the decision to be unjust. The order was also wrong given that one of the irregularities gave rise to an assumption of alleged facts against father when the court had not conducted a finding of fact hearing and accordingly the judge’s welfare evaluation was based on what is said to be a false premise. 
  2. It needs to be understood that the allegations made against father are serious. The most serious of the allegations and the assertions of risk were not made by mother but by the Cafcass practitioner who was the family court advisor. The allegations have not been decided and nothing which follows in this judgment should be taken to minimise the risk that might exist if the allegations are true. Equally, if the allegations are not proved or the risk assessment is as a consequence or otherwise wrong, the child who is the subject of these proceedings and his father have been seriously failed.

The case peculiarly seems to have proceeded on the basis that allegations made about father had been proven by the Court, when in fact they had not yet been tested. That failing, which is bad in itself, increases when one realises that the main source of the allegations of risk was not one of the parties, but the CAFCASS officer who had been appointed to be the independent eyes and ears of the Court.

In fact, by the time the case got to a substantive hearing, the CAFCASS officer was refusing to visit the father at home, refusing to meet with him in the officer unless there was another worker present, was unable to complete the section 7 report and had become the complainant in criminal proceedings about father’s behaviour towards her.

The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties. She was also a complainant in criminal proceedings. This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court’s advisor and the child’s ‘effective access to justice’ at a time when she was the complainant in criminal proceedings against the father. It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children. We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case. A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.

 

(I’d suggest that one doesn’t need Basil Rathbone, Robert Downey Junior or Benedict Cumberbatch to help one in reaching that conclusion. How on earth can a CAFCASS officer be independent at that point?  That doesn’t mean that the Court have found that the CAFCASS officer was wrong or right in her complaints, just that by that point, she could no longer be assisting the Court in making recommendations about the child’s future – whatever was happening between her and the father had contaminated the independent nature of the role which is so integral to it)

However, she did continue, and prepared a report which understandably was not very favourable to father and considered that he presented an unmanageable level of risk.

 

 

  1. The report filed on 19 December 2012 was 19 close typed pages in length. It described detailed allegations of fact previously unknown to the court in terms which read as if the allegations were true. The reader is left in no doubt that the family court advisor believed the allegations to be true. At no stage was it highlighted that the facts had not been established by a process of fact finding in a family court. It is entirely unclear what facts father had conceded or might concede, which is not surprising given that he was not involved in the preparation of the report. The author described the risk in the case as being:

     

     

    “father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”

  2. A very detailed analysis of risk was conducted by the family court advisor with the benefit of input from professionals contacted by her during the preparation of her report. That included whether father’s mental health issues including suicidal ideation, depression and anger and his own social isolation were relevant (on the assumption they were accurately described). One of those professionals compared father with Raoul Moat (the panel beater, tree surgeon and bouncer with criminal convictions for violence who shot his ex-partner, killed his new partner and seriously injured a policeman in 2010). That was not only a professionally inappropriate comparison, it was presumably quoted in the report for maximum impact. Despite that, the author clearly indicated in her report that father’s “mental health status remains an un-assessed risk factor“. The report recommended the order made by the judge three months later. It did not recommend that a fact finding hearing should take place.

 

Okay, you are probably thinking by now that this case was something of a car crash – there are allegations being reported as though they were facts, the independent CAFCASS officer being the complainant in criminal proceedings about father and lurid comparisons of the father to Raoul Moat being made without much evidence.

Stay with me, it is about to get worse.

The Court of Appeal note that both parents were litigants in person, and though they were doing their best with the thorny process, were not able properly to highlight to the Court exactly how messed up things had become. The Court of Appeal describe the judicial handling of the case as ‘fire-fighting  – it may even have been quality fire-fighting, but it was not Case Management’

  1. On 21 December 2012 the proceedings were adjourned to a contested hearing because father did not accept the Cafcass recommendation. The first available date was on 6 March 2013 before a Recorder. There were no attempts in the intervening period to update any of the information contained in the Cafcass report, in particular about father and the risk that it is said he presented. Although both parents were given permission to file further statements the question of how father could or should respond to the serious allegations in the Cafcass report was not addressed, that is the key issues were not identified to be answered and a direction for a fact finding hearing was not made.

     

     

  2. Appointments of the type I have so far been describing take time, particularly where one or more of the parties are litigants in person as a consequence of the provisions of LASPO 2012. If the dispute is not immediately susceptible of conciliation or out of court mediation it will require a lawyer’s analysis. This is after all a court of law. In the absence of lawyers, the judge has to do that and to do that without assistance and sometimes with quite vocal hindrance. That requires more time than in a circumstance where the lawyers can be required to apply the rules and practice directions, produce the witness statements, summaries, analyses and schedules, obtain instructions and protect their lay client’s interests. Where a court is faced with litigants in person the judge has to do all that while maintaining both the reality and perception of fairness and due process. I do not criticise any of the judges involved in this case. Each was handed a case about which he or she knew nothing and given time only to deal with the most pressing issue or two that had arisen. That was fire fighting, it may even have been quality fire fighting but it was not case management.

 

So, we have a car-wreck with the CAFCASS officer, both parents are in person – looking back earlier the only statement from mum dealing with the allegations against dad was not actually evidence (it had no statement of truth) and the Judges who looked at the case were doing their best, but hadn’t really gripped it.

It still gets worse

On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal.

So in the context of all I’ve previously said, the CAFCASS officer then turned up on the day of the hearing, against litigants in person, and ambushed them with a 22 page document, full of stuff that wasn’t actually evidence.

Does it surprise you that I am about to say – it still gets worse

  1. In that context, father made an application to adjourn the contested hearing. His primary purpose was to adduce up to date evidence about his mental health. He asserted that his treatment was susceptible of successful completion and that he would be able to demonstrate that with materials from the professionals involved. In addition and unknown to the family court advisor, the probation officer she quoted in good faith had been replaced sometime in 2012 and as this court now knows, the risk described by father’s senior probation officer who had detailed knowledge of father’s supervision was fundamentally different. In simple terms, his analysis was that father presented a low risk.

     

     

  2. It is not surprising that the judge who was new to the case was unimpressed by an application to adjourn given the lengthy delay there had been in getting the first contested hearing listed. Had she known that a fact finding hearing had never occurred she might have been able to find a constructive way to use the hearing to good effect and still afford father the opportunity to update the evidence about risk and to fairly deal with the family court advisor’s materials.

So father wasn’t given his adjourment, to deal with the ambush that he’d been hit with. And the Court didn’t properly appreciate that the allegations being thrown at him were untested allegations rather than determined facts.

What do you think? Does the next bit make it better or worse? Place your bets ladies and gentlemen.

  1. The hearing then commenced. The mother did not give evidence to substantiate her allegations and was accordingly not questioned by anyone. As a matter of pure technical form, her document of 12 August 2013 was never admitted into evidence. There was therefore no evidence from mother for father to meet and he was accordingly afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor. As I have remarked, she treated the allegations as fact. She gave evidence based upon her report and her substantial chronology, that is hearsay evidence about the facts in issue as well as reported opinion from other professionals and her own opinion. I do not say that this was entirely inappropriate. It is appropriate for a family court advisor to identify the facts or alleged facts she has relied upon and the opinions of others that she accepts or adopts in coming to her own opinions and recommendations. She is after all a qualified social worker whose skill and expertise are those of an expert in that field. That said, had a fact finding hearing been held, third hand hearsay evidence of facts in issue might not have been given great weight in the absence of the evidence of mother or a concession from father.

     

     

  2. I do not ignore the possibility that an alleged victim of domestic violence from an allegedly over controlling or dangerous perpetrator may need considerable support to give her evidence. At the very least it should be established just what evidence she is able to give and an appropriate opportunity should be given to the alleged perpetrator to challenge that evidence. That could have been done by case management or, as I shall describe, by a more inquisitorial process that protected the interests of all involved. What was not acceptable in my judgment was the presentation of facts that were in dispute as if they were decided. The judge who heard the case (and who would have had no knowledge of it before she walked into court on the morning) was entitled to know that contrary to the impression given this was a fact finding hearing where the facts were in dispute. The hearing that was conducted was accordingly not a fact finding hearing, it was a welfare hearing which heard about the severe risk that it was said father presented to mother based upon facts that had never been tested let alone determined by a family court.

Oh God… and just when you think that I must be finished, and things could not possibly have got any worse

To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity) [2002] EWCA Civ 1626, [2003] 1 FLR 329 at [13]. The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did.

 

Scroll back, read that again  – the CAFCASS officer gave her evidence from behind a screen.

Re WTF 2013

Needless to say, the father won his appeal against the order – he was fortunate that he realised, or got advice, which showed him that (as the Court of Appeal said) he had been denied Natural Justice at almost every stage of the process, and the final decision was fundamentally flawed in almost every regard.

 

The Court of Appeal give some useful guidance  for management of cases involving litigants in person (this can only be aimed at Judges, since there’s no prospect of LIPs being aware of this case, never mind drawing judicial attention to it)

  1. I have intimated that a more inquisitorial process may help those judges who need to deal with very difficult cases involving litigants in person where emotions can run very high. At the hearing at which the section 7 report was first available there was an opportunity for detailed case management. In less fraught cases this is often a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings. That was the latest of the various hearings at which the key issues of fact and opinion could have been identified and if not resolved, described on the face of an order so that the parties and the court would have been clear about the purpose of the contested hearing. Directions could have included providing short answers to the key issues identified and up to date materials which would have avoided father’s last minute adjournment application and his successful application to this court to adduce additional evidence.

     

     

  2. At the hearing and given that it would have been clear whether the key issues included the need to make findings of fact, the judge can control the process to ensure that it is fair. Having been sworn, each party can be asked to set out their proposals and to confirm their version of the disputed key facts. They can then be asked by the judge what questions they would like to ask of the other party. Where lawyers are not instructed the judge can then assimilate the issues identified into his or her own questions and ask each party the questions that the judge thinks are relevant to the key issues in the case. It may be appropriate to give the parties the opportunity to give a short reply. In that way the issues can be proportionately and fairly considered. 

     

  3. At the conclusion of the hearing before us it became clear that separate proceedings under the provisions of the Family Law Act 1996 had been commenced by mother without notice to father. This court has not had the opportunity to scrutinise that process. Yet another judge is involved but directions have been given in those proceedings for the facts in issue to be identified and resolved. Given that this has led to detailed witness statements being filed by the parties, we shall direct that any further directions in those proceedings be listed before the same judge who is allocated to determine the Children Act proceedings. 

     

  4. The problems which have complicated this case are hopefully rare. The solution is to use the processes of the court to better effect. The family court is a court of law not a talking shop. No matter how much its judges will strive to obtain safe agreements between the parties, its rules, practice directions and forensic protections are for a purpose – to do right by all manner of persons, without fear or favour, affection or ill will.

Voice of the child in pre-proceedings work

 

Work done with the Local Authority and parents before the case ever gets to Court (and ideally with the view of the case never needing to come to Court) has been important for a few years now, and will become even more important when the new PLO comes in, and there’s even more emphasis on what happened before the case got into the Court-room.

 

There have been many people saying for a number of years, that not having a Guardian, representing the child’s interests and being either the check-and-balance to a Local Authority who may be being zealous or oppressive OR an independent person who is able to impartially communicate to the parents that they are in a perilous situation if improvements are not made, is a major flaw in the pre-proceedings system.

 

It is for that reason that a pilot was set up in Coventy and Warwickshire, to have a Guardian involved in pre-proceedings meetings between the social worker and the parents.

 

The pilot is complete now, and the report is available here http://www.cafcass.gov.uk/media/167143/coventry_and_warwickshire_pre-proceedings_pilot_final_report_july_4_2013.pdf

 

{There was a third pilot area, Liverpool, and there will be a report on that in due course}

 

The positive aspects of the pilot was that the diversion rate of pre-proceedings cases where a Guardian was involved was fifty per cent   (by diversion rate, they mean, cases that ended up with the problems being sufficiently resolved by the parents that the case did not have to go to Court).  That’s a decent figure, comparing favourably to the existing Masson studies of pre-proceedings work generally diverting about 25% of cases, and the other cases in the samples in those Local Authorities where Guardians were not involved.

 

 

Of the cases that do go to Court, are they dealt with any faster? Well, the sample sizes are frankly very small to draw conclusions from – one or two “long runners” could skew the figures very badly, but they do claim that the Pre proceedings cases where there WAS a Guardian (CAFCASS Plus) finished more quickly than the ones where there was not

 

The overall average (mean) duration of the care proceedings for the Cafcass PLUS cases (excluding the complex cases) is 36.3 weeks (based on 11 cases). The duration of the comparator cases is 42.6 weeks (18 cases). There is a distinct differencebetween the Warwickshire Cafcass PLUS and comparator cases in respect of careproceedings duration. There are fewer longer running cases (more than 40 weeks) in the Cafcass PLUS sample as a whole.

 

I really think the sample size is far too small to get excited about that. And actually, is the over-arching aim of having a voice for the child in pre-proceedings work speed of resolution, as opposed to fairness and getting the work done right?

 

 

The positive diversion rates, the pilot considers largely due to two things – (1) galvanising extended family members to assist the parents, and this seems to me to be a very laudable aim and (2) parents engaging in reparative work.

 

It would have been interesting to know whether the involvement of a Guardian either increased the reach out to family members OR somehow made it more likely that the family members ‘stepped up to the plate’. And also whether the reparative work was either better focussed, or the parents more committed to making use of it.    That would be something I would hope is focussed on more, if the pilot is enhanced in numbers.

 

This bit is interesting

 

However, the pilot also provides clear evidence that where cases progressed to court on an unplanned basis and local authority work is

incomplete, then the FCA was not able overturn deficiencies in pre-­proceedings practice.

 

[i.e, where the pre-proceedings work hasn’t been done very well, having a Guardian on board didn’t fix that. That seems to me rather disappointing, that’s clearly what one would hope that a Guardian would be doing during this pre-proceedings work, making sure that the LA did the work properly and covered all of the bases, with the benefit of that fresh pair of eyes and an independent pair of eyes.]

 

 

The pilot report raises some very good questions about systemic causes of delay, two of the four of which rest on the shoulders of the Courts rather than other professionals

 

Systemic factors include:

 

1. the enduring problem of variability in the quality of social work

assessment but equally failure of courts to recognise good social work

practice which creates something of a ‘chicken and an egg’ situation;

 

2. that a number of cases appear to enter the pre-proceedings process too late, such that the window for further assessment and attempt to effect change is missed and cases then progress to court on an

unplanned/emergency basis;

 

3. the difficulty of making effective decisions about, and providing effective support to parents with fluctuating mental capacity who are not deemed to warrant the services of the Official Solicitor;

 

4. difficulties in timetabling contested final hearings due to insufficient court sitting time and problems of co-ordinating the diaries of very busy

professionals.

 

 

The Official Solicitor issue is a perennial one, and becoming even more important as we have a hard cap of 26 weeks – if you can’t fairly work with parents or ask them to make decisions/agree assessments/sign written agreements because they don’t have capacity to do so, and you can’t get the Official Solicitor representing them until you are in proceedings, it will mean that all parents who lack capacity will have less time to turn their problems round than ones who do have capacity. That seems to me to be a decent Disability Discrimination case to run at some point.

 

The pilot report echoes many of the issues already raised in the Masson report about pre-proceedings work, chiefly the overwhelming feeling of professionals involved that the Court didn’t really pay any attention to it and that Courts simply routinely commission fresh assessments with the view that any parenting or risk assessment only counts if it takes place within Court proceedings.

 

 

Independence is an important issue – there’s an obvious risk that a Guardian who participates in pre-proceedings work that culminates in care proceedings being issued might be felt by the parents to have come to the care proceedings with a view of the case already formed  (rather than being completely fresh and impartial at the time that proceedings are issued)

 

The FCA’s Independence: was it in question?

The question of whether pre-proceedings involvement of the FCA compromised the FCA’s independence was raised by a range of stakeholders encountered during the course of this project. A review of parents’ statements did not reveal any concerns about this from their representatives in the Cafcass PLUS sample. The FCAs themselves stated that they did not feel their independence was compromised by

earlier involvement, they felt able to assert an independent perspective regardless of when they became involved in a case. Of course, in a small number of cases, because the FCA who was involved in pre-­proceedings had left the service, in actual fact the

case was then allocated to another FCA as described above.

 

 

[If you’ll forgive me, I’ll continue to use the word “guardian” rather than Family Court Advisor or FCA, I just don’t like it… I still miss “Guardian ad Litem” to be frank]

 

The report overall is positive about the benefits to be achieved by involving Guardians in pre-proceedings work.  I am afraid that given the costs and resources that rolling it out nationally would require, the pilot study would have needed to be much more glowing and triumphant.  And that in particular, it would have needed to show that Guardian involvement pre-proceedings had a real bearing on the success of cases being concluded within 26 weeks.

 

I think in the current climate and the agendas that are being pursued, I don’t see this pilot being positive enough to be rolled out. But it is still an interesting report and the issues that it touches on of just how hard hitting those 26 week targets will be until there is genuine systemic change are important ones.

 

 

 

[Voting link for Suesspicious Minds in the Family Law awards – you can vote for me – or any of the other candidates, who incidentally are not offering to save your life at some unspecified point in the future, here

 

http://www.familylawawards.com/ShortlistedNominees2012   ]

“Tales of the Un-experted” (sorry)

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it "value for time"]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

“As a drunkard uses a lamppost…”

 

 A discussion of the new CAFCASS figures on care proceedings issued by Local Authority area. Warning, contains maths, guesswork and ranting.

http://www.cafcass.gov.uk/media/147399/care_demand_per_child_population_by_la_under_embargo_until_9th_may_2013.pdf

 

“He uses statistics as a drunkard uses a lamppost – not for illumination, but for support”   – Winston Churchill

 

 They are interesting though, as the very least, they show up the real differences from area to area of the country. Some of that isn’t terribly surprising, one would not be shocked, for example that inner cities have higher rates of care proceedings than say Saffron Walden.  But there does seem to be quite a lot of variance even taking into account that different authorities have different social problems

 One might be surprised, for example, to see that Hackney have a lower number of care proceedings per 10,000 children than those notorious hot-beds of poverty, erm Kensington and Westminster.  Or indeed that Hackney’s figures on care proceedings per 10,000 children are now twice as high as they were in the 2008 post Baby P spike. Am scratching my head about that one.

 What is also, of course interesting, is looking at an authority and comparing it to its neighbours.  And also, as a long standing local authority locum lawyer, I can also use the chart as a handy guide to where I haven’t worked yet, and which authorities I’d probably be bored stiff in   (I won’t be taking a job in the Isles of Scilly any time soon, based on this chart)

 It isn’t terribly surprising that overall, one can see a big spike post Baby P  (that’s due in part to the increased referrals, in part to the greater willingness of local authorities to take action, in part due to a reluctance to manage risks at home that might previously have been managed, and in part due to the numbers having been artificially depressed by the double whammy of the PLO and the jacking up of court fees)

 Although 13 of the 94 authorities didn’t get this spike, they actually issued on a SMALLER proportion in the year post Baby P – including Hackney.

 You can also see that whilst a number of authorities have seen that spike settle down and decrease (though not back to pre Baby P levels) the overall trend is still increasing, from an average of 6 proceedings  per 10,000 children pre Baby P, to 8 the year after, to 9.7 in 2012/13.   And quite a few authorities are issuing MORE proceedings per 10,000 children than they were in the year post Baby P.

 [One should also bear in mind that most proceedings involve more than one child, so the actual number of CHILDREN subject to care proceedings per 10,000 children is higher than 9.7, how much higher is hard to say. I’d guess that the AVERAGE number of children per care proceedings is about 1.5 – you get a lot of babies, but also a lot of large sibling groups]

 

As the other CAFCASS stats show

 http://www.cafcass.gov.uk/news/2013/april_2013_care_application_statistics.aspx

 April 2013’s figures were 20% higher than April 2012’s  (which were themselves already a high base)

 And February 2013 hit 999 applications, the highest for any month ever.  (and bear in mind that February is a short month, and it is not historically one of the spike months – which are normally coinciding with imminent long school holidays, so June/July and Christmas period)

 On my guess, those 999 applications represent 1,500 children.

 And between March 2012 and April 2013, CAFCASS received 11,064 applications   (or on my guess, 16,000-17,000 children were made the subject of care proceedings in that year)

 This all makes me a little nervous  – because when you look at the national figures for adoption recruitment, the English authorities approved 2655 adopters in the whole of last year.

 http://media.education.gov.uk/assets/files/xls/u/20130326%20underlying%20data%20for%20maps.xls#’Map C’!A1

 

Now of course, not all of the children who came into proceedings need to be adopted – one hopes that MOST of them stay with mum and dad, some more are placed with family members, some of them will be too old to be adopted even if they can’t be placed with family members. So the 16,000 children is a MUCH MUCH higher figure than the children who need adoptive placements as a result of coming into care proceedings – I don’t have any hard data to extrapolate that. *

 *[Other than the same Government adoption stats that showed 2655 adopters approved in 2012, showed 5750 children waiting for adoptive placements, which I’ve written about previously. But that doesn’t tell me how many of those children had been identified as needing a placement THAT year  ]

 That might be one of those pieces of management information that Norgrove identified as being lacking in the family justice system – what are the outcomes for children who come into the public law Court arena?   Would be much better to have some proper hard and fast statistical analysis, rather than my hamfisted bungling. 

 [By the same token, it seems to me utterly ludicrous that we have figures on the number of CASES, when what we want to know, what we actually care about, surely is the number of CHILDREN?  ]

 But it does seem to me, that there’s serious potential for more children to be coming into the State system than the State has resources to deal with. There are, of course, three ways of tackling that problem (if indeed it is a problem). Reduce the number of children who come IN to care proceedings, reduce the number who come OUT needing placements outside of families, and increase the number of adopters who can meet the need where the Court have made that serious decision. 

 I am in some doubt as to whether the Family Justice Review changes are going to reduce the numbers of children coming IN, or the numbers coming OUT. 

 Of course, I could quite easily be wrong, and just be a pessimist clutching at lampposts in the absence of straws.

Reversing the dilution of “homeopathic’ Guardians?

The Ministry of Justice have published a series of consultation documents, setting out the contribution they suggest various ‘stakeholders’  (yuck) should bring to the table in our brave new world.

{I do like, though it is not the thrust of this post, that the Her Majesty’s Court Service contribution is to (a) send out the orders that the lawyers type up and email to them within 5 days, which doesn’t sound that onerous and (b) to have Court rooms available and Judges to sit in them. The phrase ‘don’t go mad’ springs to mind } 

The CAFCASS one interested me, to see what the MoJ think CAFCASS ought to be doing on the ground. 

 Warning, I am going to be snarky about our current ‘homeopathic Guardian’ model, not because I think that Guardians on the ground are bad or lazy (though of course, there are some who are, but just as you don’t judge GPs by Dr Shipman, and in the words of the Osmonds, one bad apple don’t spoil the whole bunch), but rather because I think their organisation has sold representation of children and the vital role of check and balance of robust Guardians to a LA down the river. 

They have responded to an unprecedented increase in demand for the services by watering down the role of representing children to such an extent that there’s barely any actual representation of children by Guardians left, and what we have is a ‘view on the papers’,  and run the risk that eventually their services will be dispensed with.

 I have seen many cases over the last few years with Guardians who have never actually seen a parent outside of the Court building, and where two visits to see a child is something of a miracle and something to be grateful for rather than being scope for savage criticism.

 So, this is one of those rare documents which is actually worth reading in full – it is fairly short.  I’ll pick out the good stuff here

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/cafcass-care-proceedings.pdf 

By first hearing

 The children’s guardian will provide assistance to the court at the first hearing in relation to the threshold, and the adequacy of the assessment carried out, or proposed, by the local authority.

The children’s guardian will appraise the proposed plans for the interim and, to the extent set out by the local authority, for the longer-term care of the child – whether by parents, others with parental responsibility, and/or other adults – ensuring that the local authority has given the plans due consideration. The children’s guardian will also assesses whether the plan is optimal, within the resources available to the local authority taking account of the child’s timescale.

 

[“Appraise” the plans is a lofty goal, quite often these days, “reading them” is a bit beyond the homeopathic Guardian model.  See, I did warn you about incoming snark at the outset]

By the time of the CMC   [which, let’s not forget will probably be by week 2 of the proceedings in the new model]   – underlining is mine

5. By the time of the CMC the children’s guardian will independently evaluate the local authority case to differentiate between thorough local authority applications and those where the guardian considers further work is needed. For the latter type of case, the children’s guardian will be intensively involved in the case on behalf of the child. The advice of the children’s guardian at the CMC is intended to help shape the case, and to support judicial case management.

6. The children’s guardian will read relevant parts of the local authority case records in order to gain a thorough understanding of the impact of previous interventions by the local authority and others. The children’s guardian’s analysis presented to court will be informed by direct work with the child and/or by observation of contact between the child and his/her parent(s)/carer(s).

7. The children’s guardian will analyse the local authority’s assessments and investigations, both direct and commissioned from others, to establish if all that could have reasonably expected to have been done at the pre-proceedings stage was done. This will be supported through constructive dialogue with the child’s local authority social worker.

8. The children’s guardian should, by the time of the CMC, see, hear, and know enough about the child to offer a clear view to the court about the child’s ascertainable wishes and feelings and the issues in the case affecting the child’s current and future safety and welfare. This includes assessing the benefit to the child from particular additional assessments and bringing to the court’s attention the child development implications of any delay within the case.

 

 

You know what? I would bloody love it, if Guardians were back doing this. Seeing the child, seeing the family, reading the records, grilling the social worker about the case, testing the evidence out in the field. That’s how we used to do it, and that was a period where we didn’t end up with a plethora of independent experts because the Guardian came to the table with a meaningful contribution.  That also reads to me as though the MoJ envisage that we will actually get the Initial Analysis on paper that is a requirement of the PLO but is a ‘custom more honoured in the breach than the observance’

 

For IRH/final hearing  (and throughout) – again, underlining mine

 9. The children’s guardian will advise the court about the possibility of the child’s attendance at court, and about any matters that s/he considers that the court should be informed. This advice may be given orally or in writing.

10. The children’s guardian will ensure that any reunification plan for a child is likely to be viable and to provide stability and permanence, especially if the child is returning to a home environment that was previously abusive or neglectful.

11. A written report must be provided to the court by the children’s guardian unless directed otherwise. The children’s guardian will produce high quality reports that are focused, analytical and evidence based, utilising the Cafcass analytical writing template. This will support robust judicial decision making and case management. Reports will generally be 3-6 pages in length, though the examination of a disputed or contentious issue may result in a longer report. Cross referencing information held elsewhere within the case file, in accordance with the Cafcass reporting to court policy, will ensure reports are succinct. Reports and evidence given in court will be informed by evidence from research.

 

12. The children’s guardian will provide the court with an analysis of parental capacity to meet the subject child’s/children’s needs, taking account of the timescale within which the identified needs must be met.

 

13. The recommendations of the children’s guardian will reflect the child’s needs in terms of placement and contact arrangements, explaining how these arrangements are likely to safeguard and promote the child’s welfare

 Not 100% sure that the combination of robust analytical reports and a 3-6 page aspirational length really goes together, but I applaud the spirit of what is here.

In a practical sense, that sort of length will mean that our current theme of Guardians not doing their own welfare checklist, as a counterpoint/comparator to the LA version, is likely to continue.  I LIKED, even as an LA lawyer, having an alternative version of the key analytical checklist before the Court, and would like to see it come back.

Let us see whether this actually gets adopted by CAFCASS, even if it does come in. After all, the PLO is routinely ignored.

What might be different is that, given the tone and direction we are heading in, that parents representatives will be forced, if they want an independent assessment, to persuade the Court that the Guardian’s contribution isn’t a reason to refuse that, and comparing it to what the MoJ say the Guardian should be bringing to the party would be one way of doing that.

 

Rule 16.4 Guardians have a duty to take the initiative

A discussion of the Re G  Court of Appeal decision and what it means for Rule 16.4 Guardians and those representing them.

 

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1434.html

Bit of explanatory background – in private law proceedings (i.e where a mother and father are in disagreement about the arrangements for their child and ask the Court to resolve things) sometimes the Court appoint a Guardian (effectively a social work qualified professional who is independent and doesn’t work for Social Services)  to represent the interests of the child. This is called a Rule 16.4 Guardian, or often just a 16.4 Guardian.  (To confuse things still further, a lot of people still call them 9.5 Guardians, as that was what they used to be called and people aren’t good at change)

 

It generally happens in really tricky cases where the Court is feeling that some independent presence would be helpful to defuse the situation.

 

 

Now, Rule 16.4 Guardians are employed by CAFCASS. Over recent years, CAFCASS have been more and more stretched by demand and have responded to this by directing their individual Guardians to do less and less on individual cases, so they can spread the larger number of cases across the same number of Guardians (by each taking on more cases, but doing less work on each)

 

At the same time, the solicitors representing Rule 16.4 Guardians are under increasing financial pressures to do less on the case too, because they get fixed fees, and the more time they spent on the case, the less profitable it becomes (often getting close to break-even or worse)

 

So, that’s the context.

 

The facts of this case are problematic – it is a case that has been plagued by litigation and appeals, and has already been up to the  Appeal Court twice and the House of Lords once. It relates to a father who provided gametes for a lesbian couple to have children, and there was then a falling out about whether he was supposed to play a part in the children’s lives (as he wished) or whether his work and involvement was over at the point the gametes were handed over (as the two mothers wished)

 

 

It is not terribly surprising given the massive conflict in this case that a Rule 16.4 Guardian was appointed.

 

What probably was surprising, both to the Rule 16.4 Guardian and those representing her was that they took a bit of a  kicking from the Court of Appeal. 

 

And the Court of Appeal set down, probably for the first time, what the expectations of a Rule 16.4 Guardian is, and it turns out that the Court expect them to ensure that the case is brought back before the Court if problems start to arise.  Indeed, the phrase “a clear duty to take the initiative” is used.

 

This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum the children’s guardian, as the only party with the benefit of legal advice and representation must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.

 

 

 

  1. The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.
  1. It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.
  1. I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing.

 

One can see why the Courts want to put down such a marker, particularly as we move into a future where more and more of these intractable private law cases will have only one legally represented party (the rule 16.4 Guardian) who will understand the process and how to get hearings listed.

 

But unless this is accompanied by some change in the way CAFCASS ask 16.4 Guardians to run the cases, and the LSC funding the representation of 16.4 Guardians in such a way that it is open to the solicitor for the child to be proactively case managing the case rather than simply representing the child, I don’t see it working.

 

In fact, I think a telephone call asking a solicitor whether they will represent a 16.4 Guardian might now cause a mild shiver down the spine of whether this is a case that is economically worth taking at all. 

 

We already know, for example, that solicitors representing 16.4 Guardians come under huge pressure from the Courts to be the sole funder of expert assessments, when the LSC (who pay for them) won’t allow that, and leaving them arguing with a Judge or being stuck with huge expert bills to pay from the solicitors own pocket. 

And if you’re now going to have to run around after unrepresented and warring parties to make sure the case is on track and if not whip it back into Court or face blame, it becomes pretty unattractive to represent even the most charming and personable of Guardians.

When is a duty not a duty ? (when it falls on CAFCASS, of course)

 

A brief analysis of the Court of Appeal decision in R & Others and CAFCASS 2012

 

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/853.html&query=cafcass&method=boolean

 

 

It may alarm and stagger you to learn that in some cases back in 2009, CAFCASS did not appoint a Guardian immediately to represent children in public law proceedings.  (It would probably alarm and stagger you still less to learn that this was also the case in some private law proceedings, and almost certainly still is)

 

 

There were four individual cases bundled together :-

 

R – care proceedings began 28th June 2009 and a Guardian was allocated by CAFCASS on 15th September 2009   (the risks were of physical harm, and he was in voluntary foster care at the outset of proceedings)

 

E – care proceedings began 22nd December 2009 – there was a finding of fact hearing relating to physical injuries alleged to have occurred when E was just an infant. There never seems to have been a Guardian appointed. This bit (a direct quote) is astonishing even to my jaded palate.

 

“Therefore, other than to inform E’s parents that he was the guardian he did not participate in the case at all. He forgot to inform the court that he was the allocated guardian.” 

 

 

In the words of the immortal P G Wodehouse , on reading that, I inspected my mind and found it to be boggled.

 

J – care proceedings began 30th October 2009  and a Guardian was appointed on 22nd March 2010  (3 weeks after a Letter Before Claim was sent by those representing the mother)

 

K – care proceedings began on 25th August 2009 – on 22nd March 2010 a Guardian was appointed. (Once again, 3 weeks after the Letter Before Claim was sent to CAFCASS)

 

 

 

The case really turns on whether CAFCASS’s duty to represent children and provide Guardians to represent children extends to a duty to do so in any one individual case, or whether it is more of an aspirational global mission statement which does not ensure that any individual child gets proper representation   (note, this sentence does not purport to be in any way neutral and is strictly the author’s rather than the words of any Judge either at first )

 

 

These passages from the Court of Appeal judgment (that of Lord Justice McFarlane) illustrate the sympathy that the Court had with the Claimants argument that appointment of a Guardian is pivotal to the progress of a care case and that doing so in the early stages  (when the issues are separation or not, the levels of interim contact and the shape and nature of assessments) is critical.

 

 

  1. I need absolutely no persuasion as to the essential merits of the complaint that lies behind the claims of each of the four children before this court or of the plea that is now made so forcefully and eloquently on their behalf. Whether one uses the words of the Inquiries that argued for the introduction of the guardian’s role, or the words of the Family Justice Review and the government’s response to it, or those of Charles J and the Divisional Court, the immense importance of the role of a children’s guardian both to the operation of the statutory scheme for protecting children from significant harm and to the quality of outcome for the individual child in each such case is hard to understate. Without, I hope, stretching the metaphor beyond its tolerance: in the tandem model it is the children’s guardian, rather than the child’s solicitor, who steers the course for the child’s representation in the proceedings. A guardian who is appointed promptly at the start of the proceedings can conduct an initial investigation of the circumstances, offer a preliminary analysis of the issues and, crucially, assist the court in crafting the case management directions which will, to a large extent, determine the course and timetable of the litigation.
  1. The great value to the child, the other parties and to the court of appointing a children’s guardian very promptly after the start of proceedings under CA 1989 Part IV has been readily accepted by both sides in this appeal and has, since April 2008, been a key expectation of the PLO (and now the FPR 2010, PD12A). Although  CAFCASS  has, understandably, carefully chosen the word ‘undesirable’ to describe the delay in appointment in the four appellants’ cases, Mr McCarthy has not in any manner sought to justify what occurred in positive terms. All are effectively agreed that the optimal outcome is for a children’s guardian to be appointed promptly in every public law child case. The points made about the importance of representation to any party, particularly one under a disability, are well made. The question raised in this appeal does not, however, concern the desirability of prompt or immediate appointment. The question for us is not one of desirability but one of statutory duty and it is whether  CAFCASS  has a statutory duty, owed to each individual child, to effect the prompt or immediate appointment of a children’s guardian in every such case.
  1. Despite the real sympathy that I have for the plea that lies behind the Appellant’s case, it is necessary to apply a legal, public law, analysis to the arguments raised and to the wording of the key statutory provisions. In doing so, where a choice of statutory construction arises, and a purposive interpretation is called for, I am plain that any purposive construction must point to the early or immediate appointment of a guardian.

 

 

 

But also highlight where this is going – in order to impose a duty on CAFCASS to appoint a Guardian in an individual case and do so promptly, the Court would have to find something within the statutes which creates such a duty in an individual case. If not, CAFCASS escape with the Jedi hand-wave of ‘we represent children in general, just not in this particular case, and at a time that suits us’

 

The Court did not find that such a statutory construction could be derived, and that the earlier decision of Mr Justice Charles in R v CAFCASS 2003

 

http://www.bailii.org/ew/cases/EWHC/Admin/2003/235.html  remained the correct expression of the law, that there was no duty on CAFCASS in any individual case to appoint a Guardian.

 

 

 

There was then an attempt to argue that the failure of CAFCASS to appoint a Guardian ‘immediately’ on the commencement of proceedings or on direction from the Court led to a breach of Human Rights, variously on articles 6 or 8.  This did not succeed either.

 

 

  1. It may well be that in one or more individual cases where there has been failure by  CAFCASS  to appoint a children’s guardian in a timely manner, or at all, it will be possible to conclude that there has been a breach of the Art 6 and/or Art 8 rights of the individual child before the court. Such a conclusion would, in my view, only be achievable after the completion of the trial process and after it had been evaluated as a whole so as to determine whether or not a violation of these Convention rights had taken place. We are not invited in respect of the four cases before the court to conclude that in any one of them there was an actual breach of Convention rights. It is of note that in none of the four cases did the trial court hold (or was, I suspect, invited to hold) that a breach of Arts 6 or 8 had occurred.
  1. To hold that, of itself, a failure to appoint a children’s guardian immediately upon being directed to do so amounts to a breach of Convention rights, would involve assuming that the judge, the other parties and, in particular, the solicitor for the child (who, we understand, is likely to have been appointed promptly) would have failed to act in a manner which, to some degree, accommodated the lack of guardian and protected the child’s rights. In proceedings under CA 1989, Part 4, the family court itself has a primary duty under the HRA 1998 to conduct its process in a manner which is compatible with the Convention. To hold, as Mr Geekie asks us to do, that a failure to appoint a guardian immediately is sufficient to establish that the proceedings as a whole are bound to be conducted in breach of Art 6 or 8 must involve the assumption that it will be beyond the capacity of the trial judge to ensure a fair trial in the absence of a guardian for any stages of the proceedings.
  1. The issues involved in public child care proceedings are often of the utmost importance to the parents, to the state and above all to the subject child. No one involved in these cases should be under any misapprehension that rights under ECHR Arts 6(1) and 8 will be ‘engaged’ at every stage of the process. There is a duty upon public bodies, of which  CAFCASS , the local authority and the court are three, to act at all times in a manner which is compatible with the convention (HRA 1998, s 6(1)). It is against that background that  CAFCASS  readily accepts the duty that Charles J found lay within s 12 of the 2000 Act to appoint a children’s guardian as soon as practicable after the request is made. Although not expressly argued before him, the ECHR arguments that we have heard support the conclusion to which Charles J arrived, just as they support the conclusion of the court below in the present case. It is, however, just not possible to hold that the Appellants’ human rights arguments support the conclusion for which Mr Geekie now argues which would involve holding that in every case a failure to appoint a guardian immediately upon request would inevitably amount to a breach of Convention rights. HRA 1998, s 3 will only give this court jurisdiction to read text into a provision where the provision is not otherwise compatible with the Convention rights. Nothing short of a finding on the level I have described would make it permissible for this court to ‘read in’ to s 12 of the 2000 Act a requirement for immediate appointment which, as Charles J has held, is not otherwise present.
  1. Even if, contrary to the foregoing, the effect of Arts. 6 and 8 were to require the immediate appointment of a guardian in every case, it would not justify the court adopting, pursuant to HRA 1998 s.3, a different interpretation of s.12 from that which otherwise be adopted in accordance with the normal principles of statutory construction under domestic law. That is because the CJCSA 2000 contains its own mechanism for the laying down of any appropriate time limits, by means of directions under paragraph 9 of schedule 2, and any requirement as to immediate appointment of a guardian could be imposed by such directions. Compatibility with the Convention could therefore be achieved within the terms of the Act without any need to adopt a different interpretation of s.12 in order to produce such a result. The fact that the statutory mechanism would call for action by the Lord Chancellor in making the relevant directions would not be a good reason for the court to adopt a different interpretation of s.12.
  1. Despite fully acknowledging the very real importance of achieving the appointment of a children’s guardian for a child who is the subject of care proceedings at an early stage in every case, I am entirely satisfied that the decisions of Charles J in R v  CAFCASS  and of the Divisional Court in the present case are sound and correctly describe the duty upon  CAFCASS  under CJCSA 2000, s 12.

 

 

The battle-weary amongst you may be saying, so what?  These cases were all 2009 and we know that CAFCASS were having huge problems now and that these are conquered.

 

I, however, am feeling uncomfortable that this case is a continuation of the green light for CAFCASS should workloads increase or staff numbers decrease in the future, to run what I’ve described in the past as a homeopathic Guardian service, where the active ingredient of a Guardian actually being involved in the case talking, reading, listening and observing becomes so dilute that there is barely any of it.  It imports the ability for CAFCASS to run a sort of ‘triage’ service where they determine which cases need a Guardian straight away, and which can potter along on their own until the work-load crisis ameliorates a little.

 

 

 

 

 

 

 

 

I also feel uncomfortable than in the last two months, the family Courts have decided that family Court judges have no sway, influence, or jurisdiction over :-

 

(a)  CAFCASS if they drag their heels appointing a Guardian, or

(b)  The Legal Services Commission if they decide they don’t want to pay the costs of an assessment or want to quibble over the bill to an extent where the proceedings are catastrophically delayed whilst that is resolved, and where it is apparently okay for them to tell the President of the Family Division that they don’t come to Court when they are ordered to and just ignore those orders.

 

And leaving the remedy for both being judicial review for Wednesbury unreasonable individual examples  (ignoring the difficulties in funding, proving, litigating and timely resolution of this, and that what is needed is general principles, not individual case resolution piece by piece, and that almost certainly the judicial review courts will quickly stamp on these sorts of cases because they are already swamped in ongoing JRs)

 

Although we haven’t had a case about whether the Court can make the Official Solicitor move more quickly in representing the most vulnerable in our society, I have little doubt that the outcome on that would be the same; we’re already inviting them in more and more courteous terms to do the job that they are charged with.

 

Whilst in the same broad period of time decided that their judicial muscles can be flexed in making LA’s pay the costs of intervenors who happen to triumph in their cases.

 

Is the LA now the only body who can be cheerfully pushed around by the Court? It begins to look that way.

 

And Justice Ryder’s recent speech on modernisation points that way too (my underlining)  :-

 

There is a place for independent social work and forensic experts to advise on discrete issues that are outside the skill and expertise of the court or to provide an overview of different professional elements in the most complex cases but regard must be had to why those who are already witnesses before the court have not provided the evidence that is necessary and who should pay for it when it is missing.

 

Who on earth could he mean? Are the Courts going to order CAFCASS to pay when a report needs to be commissioned because Guardians are no longer the independent active ‘Court’s eyes and ears on the ground’ that they used to be?   Or are they just going to make the LA pay for everything and blame it on poor quality social work reports? I wonder.

 

 

 

 

 

I suggest that the Government take half the money that is currently spent on psychologists and Independent Social Workers, and put the Guardian service back the way it was, with staff given caseloads and time to actually be the independent social work check and balance and voice of the child they were intended to be. The reason for the proliferation of experts is because we no longer allow Guardians to do the job they signed up to do and that very very many of them were extremely good at doing.

 

As a footnote on my snarky comments about mission statements, the best advice I ever read about them is to imagine that they say the opposite. If that becomes ridiculous then the mission statement is meaningless.  (i.e This Organisation wants to please its customers – the reverse is not something that would be true of any business, thus the mission statement is redundant nonsense. If nobody could possibly disagree with it, it isn’t meaningful. For example  “We’re against nuclear war” is meaningless, “We’re against nuclear power” is not – there’s a degree of choice and standpoint with the latter – you could agree or disagree, whereas really nobody is in favour of nuclear war)

 

 

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