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Little boxes and the ark of the covenant

As part of the continuing desire to standardise everything, and a belief that any problem can be solved if only there is enough written guidance, practice directions, policy frameworks and standard documents, there is a proposed model for the initial social work statement.

I am not sure why it is that there is a belief that one can collapse the diversity and detail of families into one standardised little-boxes pro-forma, as though all parents and children were Lego figures rather than individuals with hopes and fears, dreams and disappointments, struggles and triumphs.  If you have read any of the cases in my blog over the last two years, you will see that the Family Courts deal with surprising and intricate things, that people can end up in situations or predicaments that no person could anticpate and cater for in a standard document.  Structure, yes, guidance to avoid jargon and verbosity and sloppy attention to the difference between evidence and assertion – all good things. But don’t try to make a pro-forma that fits every case. It just isn’t do-able.

[I'm not entirely neutral on this point, I have to confess]

This one has been put together by the Association of Directors of Children’s Services.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279212/Annexes_to_statutory_guidance.docx

I don’t want to be unkind.  (I should just end the blog there to be honest). Apologies if you, or your friend, or your cousin was one of those people. I’m afraid that I don’t like it. Others may differ from my opinion – I may just be one loud-mouthed jerk, after all. Don’t take it to heart.  Honestly, stop reading right now. There is a really nice you-tube thing of ducklings on a waterslide – go and find that, it will cheer your heart.

In a Solution-Focused-Therapy style, let’s try to say something nice  “What were you pleased with?”

Well, people have clearly worked very hard on it.

Not necessarily the right people, but people have obviously worked very hard on it.

This version is actually worse than the first version of it, which takes some doing. It is also worse than the standardised model laid out in the revised PLO. A sentence I never thought that I’d type – I prefer the version in the new PLO document.

It is packed full of everything that is worse about design by committee – it is little boxes galore, it is reductionist, it assumes that everyone who will be writing the document is a moron incapable of independent thought without being led by the nose to the next little box to complete. The process of reading it is offensive to your eyes. It doesn’t include a Welfare Checklist. (I mean, the Act gives everyone a specific tool for analysis, is it too much to ask that this tool would be a centrepiece of the evidence produced?) It makes the Core Assessment look gorgeous and inspirational (this is some feat)

My actual reaction to this, when I opened it up and read it was…. well, do you remember the bit at the end of Raiders of the Lost Ark, where the nazi’s open the ark and one of the chief bad guys has his face melt off whilst screaming? Sort of that.

It’s the sort of thing that when you read it, you wonder who it is supposed to help? The workers writing it? Clearly not. The parents reading it? No way. The Judges? I’d be amazed if any Judge would prefer this cumbersome little-box form (that at one point tries to encapsulate all of the issues and thought processes around contact into a six column table) to a considered narrative document.  So, other than the designers of whatever computer programme will standardise this onto every social work computer in England, who is it FOR?

I think, comparing it to Lucy Reed’s suggested pro-forma for social work assessment, which was intended to be a nasty satire – I think Lucy’s is more rigorous as a document.

http://pinktape.co.uk/courts/family-justice-modernisation-programme-update-no-nine-and-three-quarters/

 

This document, however, it at the moment still just a consultation (which means that it is inevitable unless people who will be writing them, reading them, trying to explain them to parents speak out and say how ghastly and unfit for purpose it is – OR of course if you disagree with me, you should tell them that too)

https://www.education.gov.uk/consultations/index.cfm?action=consultationDetails&consultationId=1949&external=no&menu=1

Consultation ends 26th March.

If you can’t manage a long and detailed response, just send them this link.

 

Transparency Guidance

You probably recall that the President of the Family Division is rather keen on transparency – he’s been saying so for many many years, he’s certainly no Johnny-come-lately on the issue, and was saying so for a long time as pretty much a lone voice.

He called for views on a proposal to publish every judgment in care proceedings decided by Circuit judges or above, and all Court of Protection judgments back in October, and those views have now been considered and the plan is going ahead.

In fact, from 3rd February, the overwhelming majority of judgments in care proceedings will be published on Bailii. These will be anonymised (by the poor saps who work for local authority legal departments, with the anonymising then being approved by the judge) and will be available for anyone who wants to read them.

I think that in principle this is a good thing – as the President has said many times, in the debate between those within the family justice system who say that confidentiality and respecting the child’s privacy is the point and those outside who say “secret courts – if there’s nothing to hide, why is it secret”  – the transparency camp have clearly won.

If we are to move the debate about family justice beyond “secret court, what have you got to hide” and into proper areas of where the family justice system is getting it wrong, and where it is getting it right, and what can be done differently, then publishing judgments is an idea whose time has come.

I am absolutely in favour of transparency and the public being able to see what is being done by the State in their name. Only by doing that can we properly test the system and to recalibrate if things are taking place that don’t have public backing, that are being done wrong. Every wrong decision in family justice is a huge tragedy, but at present we have very limited ability to see whether wrong decisions are a rarity or endemic.

 

Pink Tape writes very efficiently about the issue and the guidance here

 http://pinktape.co.uk/rants/and-suddenly-it-all-becomes-clear/

There are things that I worry about – not least being that we are going to go very fast from announcing it to doing it in 2 weeks, that the previously expressed views from children don’t seem to have played much of a part, how we prevent jurors from finding those judgments and contaminating the criminal trial,  that there doesn’t seem much in the way of safeguards about privacy (the President is of the view that as long as the name doesn’t get out, privacy of the child is preserved – I am slightly more cautious about the ability of the general public, journalists and determined people on the internet to put known facts together to be able to link Mr X with a genuine name), and a lack of clarity about the boundaries.

It is the latter one which troubles me, because I really think there are now gray areas – once the judgment is a public document, how direct does one have to be in highlighting that the person in that public document is the same as this very real person here.

For example, if what is currently forbidden is the parent (or anyone else) directly or indirectly identifying that the child in  Re B (Parents who snort Polyfilla) 2014 is called “Timmy Grout” but that publishing the judgment or facts in the judgment is fine, are any of these actions going to get people in trouble?

 

1. Pam Grout, the mother of Timmy, posts a link to the judgment on facebook, and makes no comment about it.

2. People add comments under the link saying “you were robbed Pam”

3. A member of Pam’s extended family posts a link to the judgment and says “Don’t talk to me about British justice”

4.A campaigner about family justice who lives abroad, say a resident of the Vatican posts a link on their website, hosted abroad, saying “Pam Grout was betrayed by the State, read the case here and see how the Judge stitched her up”

5. People living in England post links to that website

6. Pam Grout posts a link to the website on facebook, but with no comment, or someone posts a link on her facebook wall and she ticks “Like”

7. A person on Twitter says “This judgment LINK is awful. My friend Pam Trout had an awful experience in Court”

8. A newspaper runs a story about the case, quoting the judgment. In the comments section, someone says “Pam Grout is not a bad person”

9. A prominent tweeter posts “Why is Pam Grout trending? #innocent face”

10. An MP stands up in Parliament and says “Pam Grout is the mother in the well known miscarriage of justice that the Courts call Re B (Parents who snort polyfilla) 2014

11. Every newspaper in the land reports what the MP has said.

 

12. Or how about this – one of the children is 14 and tweets “I am the brother of  Timmy Grout, the Polyfilla boy” and that goes viral?  

Are any of these actually breaches, would there be sanctions? Or are all of these things okay, and the only breach would be Pam Grout saying in terms “My son Timmy was taken off me by social services”

If you are advising Pam, how confident are you in telling her which of those twelve things are breaches and which are not?

 

It may well be that we end up having a debate about whether, once these anonymised judgments are out there, that we are playing a semantic game in saying that the child is not identified, given that they clearly become IDENTIFIABLE by what’s already a simple process of putting two or three facts together.

If you live in Bon Temps, and are one of six children, and you are all taken into care, and children in your class know that this has happened to you, but they only know the lurid details if you chose to tell them; then it isn’t that hard for anyone who wants to know more to find it.   Because a  judgment is published about six children who were taken into care in Bon Temps at about the right time and the ages and genders of the siblings match up, it isn’t rocket science for people who know a few things about you – perhaps your friends, perhaps people at school who have taken an unhealthy interest in you or who dislike you, to be able to read a judgment about you online and learn about your family life, allegations that have been made – perhaps that you still wet the bed, maybe you self-harmed, perhaps you have been confused about your sexuality,  maybe your dad has mental health problems, maybe your mum smokes crack, perhaps that your uncle molested you?

Maybe that won’t just be in your childhood – perhaps a prospective love interest will search about you, perhaps a future employer, perhaps future work colleagues.  If the link between Timmy Grout and Polyfilla boy ever gets out into the public domain, that information will be there for years to come, capable of being found by anyone who wants to know a bit more about Timmy. 

Perhaps when we are all wearing Google-Glass or whatever supersedes it in five years time, every time anyone sees Timmy Grout in the street they will be alerted to who he is and what happened to him as a child and be able to read all about it.  {Google Glass is here now, and facial recognition software that sees a face and can take you to any websites they are mentioned on is already here – this sort of thing is going to be commonplace in the near future}

It may be that we reach a point where society says that the interests of transparency mean that anonymity can’t be totally preserved, and that if children’s identities are found out and that people who are not invited by them to know about their lives can find out the most intimate details themselves then that is a price worth paying for opening up our family justice system and ensuring that there are no secrets.  Maybe we will eventually get rid of the bar on identification completely.  

There are many people who think that this will be a good thing. Me, I’m mostly interested in what Timmy has to say about it.

Can one simultaneously be baffled and pleased?

It appears so. The MoJ have published a consultation on Court fees. Long time readers of this blog will know my rather low opinion of consultations  (they are a way of breaking bad news to people whilst pretending that “your view can make a difference”)

 

And any consultation on Court fees normally means one thing – they’re going up, stand still whilst the MoJ mugs you. It is so tiresome for the MOJ if you wriggle about whilst they go through your pockets and wallet.

 

This one, it appears not

 

https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform

 

 

Please send your response by 21/01/14 to:

Graeme Cummings Ministry of Justice Law and Access to Justice Group Post Point 4.38 102 Petty France London SW1H 9AJ

Tel: (020) 3334 4938

Fax: (020) 3334 2233

Email: mojfeespolicy@justice.gsi.gov.uk

 

[Might actually be worth doing that, this time]

 

 

Here are some good news items from it  (good news, from an MoJ consultation on fee changes, you can see why I am baffled)

 

Removing the fee from Non-molestation or Occupation order applications (currently £75).  Given what a palaver getting the fee-exemption was, many people ended up just paying the fee, and it always seemed wrong to me that people should have to pay a fee to get protection from domestic violence.

 

The fee for any application in Children Act cases (other than s31) is now just £215, same across the board. No more looking up in a chart to try to work out just what the bloody fee is for those applications that you hardly ever make. It’s just a standard fee across the board. That’s gone up a bit (£35) for most of the applications.

 

And here’s the odd one  – you may recall that the fee for issuing care proceedings went up several thousand per cent – from about £175 to over £5,000, and went up again in April.

The lie / spin at the time was that this was completely cost-neutral and would be covered by central government funding and that it was not an attempt to artificially depress care proceedings or provide a financial incentive for Local Authorities not to place cases before the Court.  You may recall a judicial review that didn’t succeed, and then all the various reports saying “these fees should be abolished”.   If the fees ever were cost-neutral, which almost anyone in local government would dispute, they certainly aren’t now, as central funding has been salami sliced over many years. Those court fees represent a significant drain on public authorities limited resources.   

 

The current arrangement is that the LA pay the court a fee of £3,320 up front, and then a further fee of £2,155 if there’s a final hearing.

 

Well, I immediately look for that section, to see how much care proceeding court fees are going to go up by, and see the proposals are :-

 

Flat fee on issue to change from £3,320 to £2,000   (yes, that’s actually gone DOWN)

 

Fee for final hearing to change from £2,155 to £0   (yes, that’s actually nothing)

 

This is something of a climb-down – I mean, it’s not the recommendation of the Laming report, the Plowden report or the Family Justice Review (all of which the Government said in advance they would implement in full) that the fees be scrapped entirely, but it’s a START.

 I couldn’t find anything within the consultation document that was a rationale for this reduction, so I went to the public attitude survey here

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262917/public-attitudes-civil-family-court-fees.pdf

 in which people were surveyed about court fees and given some hypothetical examples to set fees for. (There are some interesting things, more useful for private law, about public attitudes towards fairness of the court system)

 

[I did this exercise  because if I see a gift horse, the first thing I DO is look in its mouth. It is nonsensical advice to say “Don’t look a gift horse in the mouth”  - the story comes from the Trojan War, and OF COURSE the Trojans should have been wary about the gift horse…]

 

Anyway, there’s nothing in that either.  In any event, thank you MoJ for a consultation document that made me happy rather than miserable. Let’s see if it translates into action.

 

(That’s potentially a lot of money that can be spent on services to help and support troubled families, so it is not just good news for Local Authorities, but for real people too)

Death by a thousand cuts – expert fees take another hit

 

You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011   (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)

 

As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below

 

http://www.justice.gov.uk/downloads/legal-aid/funding-code/remuneration-of-expert-witnesses-guidance.PDF

 

These rates now come in to all cases with a start date after December 2013   (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)

 

 

Picking out the ones most common in care proceedings  (these are non-London rates, some of the London ones are slightly different)

 

[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]

 

Child psychiatrist now £108 per hour  [the rate in 2011 was £135]

 

Child psychologist £100.80 per hour [the rate in 2011 was £126]

 

DNA testing  £252 for the sample and testing, £72 for the report  [2011 was £315 and £90]

 

Interpreter £28 per hour   [2011 was £32]

 

Neurologist £122.40 per hour [2011 was £153]

 

Paediatrician £108 per hour            [2011 was £135]

 

Psychiatrist £108 per hour               [2011 was £135]

 

Psychologist £93.60 per hour          [2011 was £117]

 

Risk assessment expert £50.40 per hour [2011 was £63]

 

 

 

If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.

 

The new guidance is silent on social work costs, which have historically been at £30 per hour.  Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.

“Hope your child enjoyed their stay, now if you could just settle your bill, please”

 

Or, on an Alan Partridge vibe “Cashback!”  (Have been hitting the Partridge in readiness for the film, apologies)

The legal implications of the mooted proposals from Worcestershire to charge parents for voluntary foster care.

 

Worcestershire are of course, only consulting on the scheme at the moment, and haven’t made any decisions; but the idea in a nutshell is that where a parent can’t look after a child and the child goes into voluntary foster care, the parent would be charged by Worcestershire to recover the costs of this (subject to the parents means)

 

http://www.communitycare.co.uk/articles/14/08/2013/119417/council-defends-controversial-plans-to-charge-parents-whose-children-go-into-care.htm

 

 

and here

 

http://www.theguardian.com/society/2013/aug/13/children-charged-social-care-worchestershire?INTCMP=SRCH

 

 

There are, as we know, two distinct categories of services that a Local Authority provides for children in need

 

  1. Section 17 services to meet their needs
  2. Section 20 accommodation of children who have to live away from their families for whatever reason.

 

Most lawyers are dimly aware that the Children Act has in it tucked away the POWER to make charges for section 20 placements, but the Act actually goes further than that.

 

Surprisingly, despite all the vitriol that Worcestershire’s mooted policy has caused them, they are actually just complying with the Children Act 1989

 

 

     Schedule 2 para   21. —(1) Where a local authority are looking after a child(other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute(“a contributor”)

See that word ‘shall’ there? That means it is a mandatory duty. The Local Authority are legally obliged to consider whether to recover financial contributions from a parent where the child is in voluntary foster care.  (para 21 (7) prohibits doing so where the child is in compulsory foster care i.e an interim care order, for obvious reasons). They HAVE to consider whether they should try to recover the costs from the parent.

 

What Worcestershire’s maligned policy goes on to say is that such charges wouldn’t be imposed on any parent in receipt of benefits  (which the Act already says in Schedule 2 para 21(4) ) and that they would only ever recover those financial contributions where it is reasonable to do so (which the Act already says in Schedule 2 para 21 (2))

 

So Worcestershire could simply have told everyone that their intention was to comply with their duties under the Children Act 1989.  Job done.

 

Of course, although those duties exist, they are one that most authorities overlook, just as (cough cough) many of the OTHER duties in Schedule 2 get overlooked from time to time.

 

This is really more of a corporate decision that where a parent is working and has financial means, that the Local Authority would genuinely look at the issue of charging them for accommodating their children  i.e they would ACTUALLY give it consideration under Schedule 2 para 21;  whereas most Local Authorities, if they have thought about para 21 at all, it is that they would not ever try to recover such contributions.

 

One can see why, as soon as one looks at para 22’s provisions as to how such charges would actually come about

 

 

      22. —(1) Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice(“a contribution notice”) on the contributor specifying—

 (a)  the weekly sum which they consider that he should contribute; and

 (b)  arrangements for payment.

(2)  The contribution notice must be in writing and dated.

(3)  Arrangements for payment shall, in particular, include—

 (a)  the date on which liability to contribute begins(which must not be earlier than the date of the notice);

 (b)  the date on which liability under the notice will end(if the child has not before that date ceased to be looked after by the authority); and

 (c)  the date on which the first payment is to be made.

 

 

Para 22 also caps the contributions to be no more than the actual cost of foster care.  That of course, prevents the Local Authority blessed with affluent parents with stroppy teenagers from propping up their budgets by charging Mr and Mrs Moneybags £10,000 a week to look after young Tony Moneybags.

 

 

Okay, well having :-

 

(a)  Found a parent who has some means and isn’t on benefits, whose child is voluntarily accommodated

(b)  Decided whether it is reasonable to ask them for a contribution

(c)  Set that amount at what it is reasonable for them to pay – that being no more than the foster care allowance

(d)  Drawn up a Contribution Notice

 

 

What happens when the parent doesn’t pay the money?

 

Well, para 23 kicks in

 

23. —(1) Where a contributor has been served with a contribution notice and has—

 (a)  failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or

 (b)  served a notice under paragraph 22(8) withdrawing his agreement,

the authority may apply to the court for an order under this paragraph.

(2)  On such an application the court may make an order(“a contribution order”) requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.

(3)  A contribution order—

 (a)  shall not specify a weekly sum greater than that specified in the contribution notice; and

 (b)  shall be made with due regard to the contributor’s means.

(4)  A contribution order shall not—

 (a)  take effect before the date specified in the contribution notice; or

 (b)  have effect while the contributor is not liable to contribute(by virtue of paragraph 21); or

(c)     remain in force after the child has ceased to be looked after by the authority who obtained the order.

 

 

See that last little paragraph that I’ve underlined? That means that the order that the Court can make (but won’t) doesn’t have any effect once the child stops being looked after.

 

So what, you say?

 

Well, once you realise that the Local Authority HAVE to stop accommodating a child voluntarily once the parent objects (s20(7) , but that they HAVE to provide accommodation for any child who meets the criteria in s20(1), which includes “the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation”

 

(Lightbulb)

 

It is pretty clear that the wealthy parent, served with a contribution notice, who ignores it, and is then taken to court, can simply declare as soon as the Contribution Order is made that they object to the child being accommodated.

 

That ends the accommodation and the Contribution Order.  The parent can then notify the LA that the child needs to be voluntarily accommodated all over again.

 

And note that the Contribution Order doesn’t compel any payments HIGHER than the original weekly amount in the contribution notice, so it doesn’t provide for recovery of the previous weeks missed. (that’s the net effect of reg 23(3) (a) )

 

In those circumstances, the Contribution Order will net the Local Authority not one shiny penny, and will lose them all the legal fees and costs in the meantime. 

 

 

So, just running things through in my own mind :-

 

  • A policy of charging middle to high income parents for voluntarily accommodating children would be politically unpopular

 

  • It would garner very negative publicity (as we have seen, just saying that you are considering it makes things get ugly)

 

  • Probably only covers a small proportion of the children who are voluntarily looked after in any event 
  • Has the possibility of discouraging parents who are not coping temporarily and need a break from seeking that help

 

  • It almost certainly inhibits the working relationship between the Local Authority and the parent aimed at fixing the problems so that the child could go home.

 

  • It would be administratively expensive – someone has to do financial assessments (and how do you get a parent to tell you their income anyway? What’s in it for the wealthy parent to tell you?), someone has to draw up Contribution Notices, someone has to collect the money and keep track of it

 

  • Any attempt to enforce it would be incredibly vulnerable to a side-step using the interplay of s20(7) and para 24 (4) (c), as outlined above

 

  • It would be unlikely to actually recoup any income

 

 

 So, ending with Alan Partridge again, I’m not sure that this policy is “back of the net” material

 

Of course, all Worcestershire have done so far is remind themselves that they have a statutory duty to CONSIDER this and all that they have done is complied with their duties under the Children Act 1989.

“Sunlight is the best disinfectant”

Transparency, openness and the family Courts, and the President’s proposal for changes.

 

The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.

 The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.

 There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.

 

If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners.  That is important even if it is only a few cases where these things are happening.

This is the DRAFT practice guidance, issued by the President on 13th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-b-draft-transparency-in-family-courts.pdf

 

 Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17th May 2013 is the pressing issue facing the family courts  (rather than financial meltdown, injustice etc)  http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf 

 

I am actually rather supportive of the transparency proposals.

 The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so.   [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]

 

Other categories of cases should have anonymised judgments available on request.

 

I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.

 

At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.

 

This proposal of all judgments being published will  be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.

 

It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.

 

It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.

 

I have 3 thoughts that come to mind :-

 

 

1. There does need to be some thought as to how these cases will be searched for or stored on Bailii  – the signal to noise ratio problem.  At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).

 

But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.

 

Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material? 

 

 

  1. In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary? 

 

  1. This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves.  Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers.  All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.

 

 

[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]

 

If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer?   That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.  

 

 

[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark  Compare The Counsel.   Simples]

 

 

None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.

 

 

“The driver cannot ignore the passengers”

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

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