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Category Archives: family justice modernisation

Local Authority, go and sit in the naughty corner


We don’t seem to go more than about a week without some Local Authority or other getting a judicial spanking, and here’s another.


[I probably need to create a new Category on the website of  ‘judicial spanking’. No sooner said than done. If you did type ‘judicial spanking’ into Google and have arrived here, then I apologise, and I hope that you weren’t doing it on HMCS computers… ]


TM and TJ (children : Care Orders) 2015


Fundamentally, these complaints are about the Local Authority turning up to the Issues Resolution hearing, without its final evidence being in order, so that nobody really knew what their plan was and certainly hadn’t been able to respond to it.  It also touches on an issue dear to my heart, where LA “A” who are running the case, decide at the last minute that LA “B” should have a Supervision Order for these children and expect that authority to agree to this without knowing any of the background.



    1. On 12th March 2015 the Bristol Magistrates ordered that the case should be made ready for a preliminary which is called an ‘Issues Resolution Hearing’ (‘an IRH’). The intention of that kind of hearing is to identify the issues that remain between the parties and see whether they are capable of being resolved without the need for a full final hearing. It is not just a ‘directions hearing’ because Practice Direction 12A of The Family Procedure Rules 2010 (which is well known to family lawyers) provides that, at the IRH:
    • The court identifies the key issues (if any) to be determined and the extent to which those issues can be resolved or narrowed at the IRH;
    • The court considers whether the IRH can be used as a final hearing.
    • The court resolves or narrows the issues by hearing evidence.
  • The court identifies the evidence to be heard on the issues which remain to be resolved at the final hearing.
  • The court gives final case management directions.
  1. If, by the time of the IRH, the Local Authority has not filed adequate evidence, it means that the whole purpose of the IRH is negated. Thus the magistrates ordered that, by the time of the IRH, the Local Authority should have filed its final evidence including its assessment of the parents. The Local Authority had been ordered to file its final evidence (including all assessments) by 15th June 2015, the parents had been ordered to file position statements by 22nd June 2015 and the guardian had been ordered to file a position statement by 23rd June 2015. There was to be a meeting of advocates on the 16th June but that had to be abandoned because the Local Authority’s final evidence had not been filed. The court was notified that there were delays. Some final evidence was filed by the Local Authority by 22nd June 2015 although the mother’s solicitor did not receive any of the final evidence until the morning of 25th June 2015.
  2. On 25th June 2015 this case was referred to me by the Magistrates. The parties and their legal teams had all been at court since 1 p.m. that day. I knew nothing of the case before it came in front of me late that afternoon. There were the following reasons for that referral: i) All parties accepted that the Local Authority had not filed adequate final evidence. The Local Authority itself presented its case on the basis that the assessments that it had conducted were inadequate and could not be relied upon.ii) The care plan proposed that the children should go to live with the father in the east of England under a supervision order to a Local Authority in that part of the country. There was no input from that other Local Authority and there was no indication of how that authority might support the father if the children did go there. That authority was first notified of the suggestion that there should be supervision orders in its favour (and also of the hearing on 25th June 2015) on 19th June 2015. Before the email that was sent on the 19th June, that authority had no knowledge of the case at all. It is not surprising therefore that that authority did not consider that it could participate in the hearing on 25th June; it has never seen the papers in this case.iii) There was no adequate evidence of the arrangements that the father would make if he were to care for the children there. In particular, the father’s plan, if he does move to the east of the country, is to be assisted by his aunt in the care of the children. There is no evidence from her; there is no more than a ‘viability assessment of the aunt’ that was filed on 17th April 2015. Although the agency social worker who dealt with the case before leaving is thought to have spoken to the aunt before the care plans were filed, there is no record of any such discussion.iv) There had been no adequate assessment of the mother. She opposes the suggestion that the children should live with the father and wishes to care for them herself. There was an assessment of the mother that was carried out in November 2014 but this was not a parenting assessment and was carried out when the children were already in foster care. There had been a previous assessment of her in January 2014; this was a parenting assessment and was completed at a time when the children were still with her; however, that assessment was underway at the time of the birth of the second child and expressly was not an assessment of the mother’s ability to care for two children. There simply was no parenting assessment of the mother within the proceedings and there was no assessment of her ability, as a parent, to care for two children. That is despite these proceedings having been running now for very nearly six months, with the children in foster care.v) Because the Local Authority had not put forward any adequate evidence or proposals it meant that the parents did not know what case they had to meet. Even now I do not have any idea what the Local Authority recommends for these The root cause of the problem lay in the fact that the previous social worker, who was an agency worker who had been employed in January 2015, had been charged with the responsibility of writing assessments of the parents, had said that she had done so and then left her temporary employment with the Local Authority without fulfilling that responsibility properly, I am told by the Local Authority. The new social worker had only been involved in the case for three weeks prior to the IRH on 25th June and, quite understandably, did not have the knowledge upon which to write fresh assessments.

    vii) Given the omissions in the Local Authority assessments I was told that it would take 14 weeks for the current social worker to complete assessments, given her case load and summer leave. The alternative, I was told, was that an independent social worker could be instructed to report by the 14th August. The result now is that the Local Authority will have to pay from public money for an independent social worker to be employed to do the job that a social worker, employed by the authority, should have done.

    viii) Given the shortage of time, the final hearing therefore could not be sustained at the beginning of July and another date would have to be found.

    ix) The work of the guardian was materially impaired. How could she advance recommendations when she did not know what the Local Authority proposed.



The case had to be adjourned, and an independent expert had to be appointed to conduct the parenting assessments that the Local Authority hadn’t managed to do, and the LA had to pay for that.

The Judge, obviously being very critical of these failings, said this towards the end of the judgment:-

  1. I understand the difficulties that the Local Authority faces and criticisms from the bench do little to repair the problems. Indeed criticism can simply add to the recruitment difficulties that Local Authorities face. From the time of my first speech as Designated Family Judge in this area I have stressed that there are four alliterative concepts that I wish to drive forward – i) a collaborative approach amongst the many professions and institutions involved in the family justice system; ii) Proper communication between those involved in that system; iii) a recognition of the need for changes in practice and iv) a commitment to the people who really matter – the children, family members and professionals who are obliged to turn to the family court system when there are family and personal difficulties that cannot be resolved consensually.
  2. But I would like to make these points:i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.
  3. In this court area there has been a recent and considerable increase in the number of cases that are not meeting the 26 week statutory deadline. Of 181 public law cases there are 49 cases that are now ‘off track’. That means about 27% of our cases are exceeding the 26 week deadline. This has got to stop. Many people have worked extremely hard to improve upon the performance of this area and we are not prepared to see that slide away from us now. This type of poor case performance is unnecessary and is damaging to the system as a whole.
  4. There are reasons why some cases may need to exceed the 26 week deadline. For instance there are cases involving complex issues of fact (e.g. where there is an allegation of a serious offence having been committed), cases which involve large and complex family dynamics and cases involving complex medical issues. This is not such a case. There are far too many cases like this one where the issues are straightforward and where delay is manifestly harmful to the children concerned. The only reason why this case has been so delayed is inefficiency.
  5. If three days of court time are lost in this way it may well not be possible to fill those days with other work where this sort of thing happens so close to a final hearing. Not only are adjournments plainly contrary to the welfare of young children, they also cost a lot of public money and mean that very valuable court time is being lost. There is now immense pressure for every hour of court time to be used to its very fullest advantage and if one case is neglectfully prepared, as this one has been, it means that other cases and, other children and other parties suffer. It also means that public money is being used to fund the inefficiency of those people who do not engage in the system properly. It is perhaps commonplace but, nevertheless I do observe that the Local Authority that contends that the mother has not ‘co-operated with professionals’ has, itself shown a distinct and at least commensurate lack of co-operation with the court.
  6. I am therefore adjourning this case to an IRH before me in September and will list a final hearing, again before me, as soon as possible afterwards. I will also try to call the case in for review once the report of the independent social worker has been obtained. I will release this judgment on BAILII. I know that it will be picked up at least by the local press and I consider that people in South Gloucestershire need to know how their Local Authority is functioning.


I think that there’s a lot of powerful and impressive stuff in this judgment. The ‘four C’s’ approach of Collaborative, Communication, Change and Committment is a damn fine philosophy.

I had a long quibble about whether the passages in the judgment that say that there are ‘far too many’ expert assessments in Bristol Courts and that the Courts must ‘crack down on them’ were somewhat blurring the lines between the statutory requirements and judicial impartiality on applying the requirements to the facts in an individual case, and Judges in their role of being spanked for their poor performance on statistics.  But I think on re-reading that HH Judge Wildblood QC does (just ) enough to put this marker on the right side. (just)


So, instead,this (unconnected to HH J Wildblood QC who uses plain English where possible):-


Bearing in mind that coming across an impenetrable allusion in judgments is an occupational hazard  (“I thought I had seen a white leopard”  “As in the famous quotation by Lord Wellington  [quotation not supplied]”  “contumelious” and so forth),   I think that we do rather better than America.  As you may have heard, in the gay marriage case in the US Supreme Court, the words ‘apple-sauce’ ‘arrgle-bargle’ and ‘jiggery-pokery’ were used, but this Judge goes even further



  • Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.” 
  • Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.”
  • Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.”
  • Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary.
  • Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.”



Defenestration I knew, due to the ‘Defenestration of Prague’ and thaumaturgical I knew, because I love magic. The others, not a scooby.

Of these words, I found that only one of them appeared in Bailii law reports – three times in all.


In R v Johnson 2009, I think the Court of Appeal use it wrongly, when they describe a burglar leaving a building .As a matter of inference, he left the premises by means of defenestration .

I think that defenestration involves throwing something out of, or being thrown out of. I don’t think jumping or climbing out counts.

The second one Downing v NK Coating Limited 2010 fails for the same reason, but it does bizarrely involve the Court having to think about a lab assistant who left his office by climbing out of a window, thus leaving a urine sample unattended and potentially able to be tampered with.

And Ormerod and Gunn  is more of an essay (an interesting one) and once again, is referring to cases of people jumping out of windows, albeit to escape a threat of assault. It also talks about our old friend, Wilkinson v Downton 1887


So I haven’t found the term being used in its proper sense. The challenge is on.


It appears that the English Courts are fonder of throwing things out of windows then they are in magic, ploughing, boiling people in oil [glossing over the Middle Ages law reports], or whatever the heck sockdologing is…



[Ha! In an unwitting irony, it turns out that one meaning of sockdologer is to determine something in a decisive and final manner. Which is clearly something that the English Courts aren’t interested in doing.  I honestly didn’t know that when I wrote the previous sentence. ]

Rip it up and start again – rebuilding family justice


I was having a conversation on Twitter yesterday with someone who passionately felt that the family Courts needed to be scrapped entirely, rather than improved. That’s not a view that I share, but it did strike me that we don’t really discuss radical options for child protection in this country.

When the Family Justice Review was commissioned, and roved the country talking to ‘stakeholders’ the one group it didn’t really capture was those people who had been through the system and were campaigning against it. It is really easy to just write those people off as conspiracy nuts and bad losers. I don’t think that’s fair.  If you don’t listen to criticism, how do things ever get better?   I don’t necessarily accept everything that the campaigners say uncritically, but in writing this blog I have been able to spend time discussing with the campaigners their real grievances.  The Review never looked at the culture of child protection or whether we could learn lessons from other European methods.

The Family Justice Review didn’t start with a blank piece of paper. They started with a piece of paper that said don’t change much, don’t spend anything, and ideally save us lots of money.


So in terms of change, it was rather like having a house that isn’t really working out for the people living in it or visiting it, and arranging for a  cleaner to come in.

You hope that the end result is that things look better, that it feels nice and that everything works a bit more smoothly.  Of course, what can also happen is that things get out of place and not put back quite how you want them, or ornaments get broken.  What we didn’t have, was an architect coming along and saying “we can build a new building and make it work exactly the way we want it to”

So, this piece is thinking of methods you could use to rip family justice up and start again.  I’m not advocating that we do any of these things, but nor is it going to be a piece where I set out the options and sneer at them.  If you never think about the other possibilities, how do you know that there’s nothing better worth trying?


Of course, all of these options have pros and cons, some of them have major drawbacks, all of them would cost money and take time that it is unlikely that the Government is ever going to put in. But the current system has pros and cons, has some major drawbacks and costs money and time that is being steadily removed from it.


These are just some models that COULD be used, and I’d be interested in a debate about whether any of them are what the family justice campaigners have in mind, or whether they’ve got something different to my thoughts. I don’t want, in this piece, to delineate the pros and cons, because that would be me as part of the System stifling the debate. Let’s have the pros and cons come out as part of the debate.



1.  The Just Leave parents alone model.   Does exactly what it says on the tin. We stop the child protection systems in the country and leave it to parents to parent.   [Perhaps there is a tweaked version in which there’s a state safety net for the children who are at very very high risk, say about 2% of the current number of care proceedings.]


2. The Criminal Justice Model.   If you are a parent and you commit a criminal offence for which you are imprisoned, someone else of your choosing will have to look after your child until you finish your sentence. If you do something which doesn’t result in a custodial sentence, then you get on with looking after your child. Maybe this will result in more prosecutions for child abuse, neglect and possession of heroin, maybe it won’t. But if the law doesn’t think that what you have done is serious enough to be locked up for, let parents get on with it.  We would thus have no family courts (for care proceedings) and a very small number of social workers – for those cases where there is a custodial sentence and the parent can’t find someone who will look after the child.

3.  The Quasi-criminal Model  – the standard of proof is changed to the criminal standard. The rules of evidence become in line with criminal evidence. The case is decided by a jury, assisted and guided by a Judge conducting the hearing and summing up. Perhaps we even just move the process lock stock and barrel into the criminal Courts.


4. The Scandanavian Model –  we have social workers and family Courts, but the emphasis is shifted massively to providing support for families and making things work at home, solving those problems. Courts have the power to tell social workers what help a family needs and the social workers have to provide it.  There may be a rump of cases where the risks are just too great to manage at home, but that is something like 2%.  It should be thought of as a failure if the child isn’t able to stay with the family.  We lose the concept of permanence and making permanent decisions about children, and do what is right for them at that time. If a child HAS to stay somewhere else for a time, then the child can and should go home when circumstances change.


5. Splitting support and investigation Model   –  is there a conflict between the role of social workers in supporting a family and helping them, and investigating child abuse and making applications to Court?  Could that role be split, so that the people helping a family and looking after the child are kept completely separate from the investigation and prosecution role?  Perhaps the investigation/prosecution role moves over to the police, and social workers stick to support and help.


Justice Swiss style


[Although this is ham-fisted satire, all of the quotations from the Parliament Public Accounts Committee report on legal aid reforms are actually true. They really did say this stuff]


The Lord Chancellor today, whilst standing in front of one of the four surviving copies of Magna Carta and drawing on it with a thick black crayon, announced the latest reforms to the English justice system.



“Having been criticised by the Public Accounts Committee for our current reforms, it has become clear to me that I have been too timid, and the time has come to introduce the Swiss model of justice”


Gems in the Public Accounts Committee critique of the last set of reforms include :-


‘Almost two years after the reforms, the Ministry is still playing catch up: it does not know if those still eligible are able to access legal aid; and it does not understand the link between the price it pays for legal aid and the quality of advice being given. Perhaps most worryingly of all, it does not understand, and has shown little interest in, the knock-on costs of its reforms across the public sector. It therefore does not know whether the projected £300 million spending reduction in its own budget is outweighed by additional costs elsewhere. The Department therefore does not know whether the savings in the civil legal aid budget represent value for money.’




The Ministry admits that it still has little understanding of why people go to court and how and why people access legal aid.




Contrary to its assurances to Parliament, the Ministry does not know whether people who are eligible for legal aid are able to get it.





“In short, there is not a lot the Ministry does know.”



So, what exactly is the Swiss model that the Lord Chancellor plans to roll out? Here are his words in his speech, which was sent out with his annotations in italics.




“People have said to me that my reforms have rolled back the clock to Victorian times, that these are Nineteenth Century policies. To which I say – that’s a start. But we can do more. Let’s go right back to the Fourteenth Century.


The Swiss people are known for their watch-making, ski-resorts, banking and their fine chocolate – any product the Swiss make is intricate, rich with quality and with precise smooth workings. [Note – stay away from any reference to cheese, in case people suggest the policy is ‘full of holes’]


This sort of quality is exactly what I intend to bring to the English justice system when I borrow from the Swiss system. Fourteenth Century style.


“Let’s get medieval on their ass”   [Note – has Tarantino got back to us with clearance for that quote yet? If not, use air quote fingers when saying it]


Why, do you know that at the moment, the amount that we spend on justice every year would be enough to pay for every single illegal immigrant to live in Disneyland Paris for ten years and that our fat-cat legal aid lawyers earn more in a week than Pablo Picasso earned in his entire lifetime. The pensions for many of these snout-in-the-trough lawyers mean that in practice, they are able to retire before they have even finished taking their A Levels. [Note – do not get lured into providing a source for these ‘statistics’]


We can do better, we must do better and we will do better. Let us look to the Swiss and their innovations in law [Note, ignore the Geneva Convention – oh , sorry the Americans have already beaten us to it in ignoring that]


From now on, our system of people in wigs talking Latin and Judges ruling against me will be replaced by a smooth as silk Swiss model.


Any person accused by the state of doing anything naughty will be brought to the nearest town square, and given a crossbow. There, they will attempt to shoot an apple off the head of their eldest child without harming a hair on their head.


The same model will apply in all civil claims, probate, divorces, and family claims. Get the kid in, put the apple in place, shoot that off .

If successful, they will win the case.   (unless they have brought a judicial review against me, in which case the apple will be a grape, held between the teeth of their eldest child. And the eldest child will be on a bouncy castle. And the claimant will have to make the shot whilst on a unicycle. After nine pints of snakebite. In the dark. Left-handed. Best out of fifteen. Whilst being tickled. )


But, you say to me, won’t introducing this marvellous new Swiss system require a huge capital investment to make the changes? Can we afford to go Swiss?


We can’t afford NOT to go Swiss, is what I say.


I have anticipated that. By selling off all of our Court buildings and forcibly retiring all Judges and sacking all lawyers apart from the ones I use, the Government can fund apples and crossbow bolts and still achieve a 99% saving on the current budget. And Golden Delicious have already made a lucrative sponsorship offer, with the possibility of partnership with Granny Smith also on the horizon.


The Swiss system has the additional benefit in that there are no appeals. If the accused /claimant cannot make the shot, then the case is over. Also the taxpayer will not have to fund the accused’s dependent children during the period of imprisonment.


There may be some on-costs of mopping for any trials that don’t end in a not guilty verdict, but we have been approached by a Countess Bathory and some Romanian aristocrats who are interested in bulk purchase of blood, which ought to recoup those costs.


I know that looney left-wing do-gooders and vested interests may be saying to themselves “Hey Chris, using first born children as apple-holding instruments of justice and risking their lives just to save costs – that’s cruel”


And I say to those do-gooders – you know the old saying “If you can’t do the time, do lots and lots of archery practice before you do the crime”


The Swiss model, when we tested and rolled it out in Nottingham, did have two minor flaws. The first was that for childless offenders, it was something of a licence to wreak havoc – but many parts of that city are no longer burning. The second was that Phil the Power Taylor is now a criminal overlord whom the law is powerless to touch, having been acquitted nineteen separate times, and who with his band of merry darters is stealing most of the cost savings that the scheme managed to implement.



Nonetheless, I am satisfied that a national rollout will solve all of these problems and that the new justice system will no longer be an ‘arrowing experience. [pause for laughs and warm applause. Resist any request by journalists to put an apple on own head]






[Musical references for this piece would be either Pulling Mussels from the shell by Squeeze “Behind the chalet, my holiday’s complete, and I feel like William Tell, Maid Marian on her tiptoed feet”     or the more frenetic Bug powder dust by Bomb the Bass/Justin Warfield “I always hit the apple when I’m going to shoot / so you can call me William Tell or Agent Cooper to boot” and later on the wonderful   “I got a splinter though, damn, you know man it hurt / I got a Vegemite sandwich from Men at Work”


They’re both great, listen to both of them. ]     – I recommend LOUD and at home.


I’m a sausage machine, a perfect sausage machine


Agatha Christie, the doyenne of ‘cosy’ crime novels and the creator of Hercule Poirot and Miss Marple, once said of herself that she was “A sausage machine, a perfect sausage machine”.  She was talking about how her publishers thought of her, which was that their only real thinking about her was whether she could produce another book and at the time of their choosing.

I spent Friday afternoon with one of my favourite social workers and when we reached the point of saturation on talking about the detail of the case and the task that we had to complete, she said something that has been kicking around in my brain for a while.

What she said was “Once you get a case into Court, the whole thing, every single conversation you have becomes about WHEN”

She’s right. When I started this job, the cases felt like they were about real children and real parents and real situations. When you went to Court, that was predominantly what you talked about – what was happening in the real world for this family and the PROCESS was secondary.  Over time, the discussion about process became longer and the discussion about the family became shorter. The orders got longer and more labyrinthine, and less easy for a normal human being to follow. The balance has got more and more out of whack, to the point where now, the entire time at Court can be spent talking about the Court’s process, and in particular just getting the clockwork mechanism in place to make the case conclude by week 26.  Sometimes I look over at the parents, who are in Court frightened or confused or worried and I can see that none of this sounds or feels as though it is about them at all.

Everyone in a Court case is just a sausage machine, and their job is to produce the goods on time. If you are someone who has a job that involves a lot of Court proceedings, your entire working week can be spent being a sausage machine – get this done, get that done, have you done that yet? Produce this report, observe this contact, speak to this relative. Make sure you get it all done on time.  And if you are a lawyer, it can be easy to slide into the trap of just being like Agatha Christie’s publisher and that your only communication is to make sure that the goods are being produced on time.  Social workers are people, not sausage machines. And parents and children deserve more than a system that treats them that way.

Of course everyone has to have targets and deadlines, and I’m not suggesting that the cases that just drifted and delay got piled up on delay was a good thing or a golden era to be returned to. But the NHS has targets and deadlines, but it is not so obvious in their client care and bedside manner – you might have a long wait in A&E, but they don’t add insult to injury by relentlessly talking about the target and performance measures when they should be looking at your injury.

I am finding that over the last year, I have social workers say to me that in order to make a rehabilitation work, or a placement with a relative work, or to get the right decision about a child more time is needed to do it properly, and I have to keep saying “Well, we can ask, but the Court is supposed to say no”.   That doesn’t feel very nice.

Again, in the past the phrase “constructive delay” was used as a blanket excuse to justify any delay, any extra assessment, any attempt to leave no stone left unturned, but in throwing it away as a concept, we may have lost something really important. Let’s not forget that what we are doing in care proceedings is making decisions about whether a child can be safe with their parents. That’s a process that involves to an extent an educated or informed prediction about the future – something that isn’t easy to do. If you have less information than you want to make you feel confident about your prediction, don’t you end up with people playing safe?

If the social worker conducting an assessment really feels that more time and more work would make that possible and can explain why, then surely that IS constructive delay and there should be a place for it?


I don’t mean that adjournments should be given out like sweets, and that delay isn’t a bad thing. If there’s something that ought to have been done and nobody got round to it yet, then asking for more time to get it done is bound to incur some judicial displeasure and rightly so. What I’m talking about is where the social worker has done the work, asked the questions and reached a point where the only right answer is that “we just need to give this some more time to get the right answer”


(That’s something that one of the midwives of 26 weeks, Ryder LJ was talking about in the Re K case recently. Not in that context, but in the sense that just because there’s a time pressure doesn’t mean that a Judge should not sometimes step back and say, “It is better to wait and get this right, rather than do it now and get it wrong”.   In the wise words of Billy the Kid  “Speed’s fine, partner, but accuracy’s final”)


A pivotal moment in any Agatha Christie novel is the scene where the detective gathers all the suspects together and reveals the solution to the case. That has quite a bit in common with a social worker’s final evidence. Everyone is waiting anxiously to see it, nobody is completely sure what it is going to say, we know it is going to be important. At some point, someone will say loudly that this is all complete rubbish. And like Poirot’s solutions, there might well be a very difficult Court hearing after it is revealed – it isn’t really the final word on the subject.

Well, Poirot gives his solution when he knows that he has got it right, when all the pieces are in place and he can be sure that what he is saying is right. If he was instead told that by a fixed time in every murder case, he had to gather everyone in the drawing room and tell the assembled suspects who did it, then he would get some of them wrong. Sometimes not all of the suspects have even appeared  (in care proceedings, relatives do come forward late on). Sometimes not all of the clues have come to light. Sometimes he might not even have a clue.


If Poirot says that he needs to do some further detective work to reach the right conclusion, he should be given the time he needs, and not be made to feel like he is a disgrace for even suggesting it.

I agree with Nick

Ah, those heady days of the televised election debates, where Brown and Cameron were falling over themselves to position as the party who most agreed with Nick Clegg, and for a time Nick Clegg had the brightest burning star in British politics…


No, this is about District Judge Nicholas Crichton, and his very firm views about the PLO.  For those who don’t know D J Crichton, he is the pioneering judge behind the Family Drug and Alcohol Court in London, which has done so much to help troubled families and children.  He is not the ,ost influential or powerful family judge in the country – the Daily Mail wouldn’t be able to call him “Top Judge” but he is one that most of the profession look up to as a thoroughly decent, committed and imaginative judge who has tried to help those who come before him.

Therefore, when he speaks out, what he says is worth listening to.


And what he says here is that the rigid 26 week mandate is a tyranny that will lead to grave injustice for individual families who could have turned things around given the time, and he urges solicitors to appeal decisions where the 26 week mandate is rigidly imposed.

I think regular readers of this blog will know that I share those concerns myself – not that aspiring to cut out delay and the ‘dead time’ in care proceedings where nothing happened other than waiting for experts is a bad idea, rather that the rigidity of ‘one size fits all’ was inevitably going to lead to some cases being decided at the wrong time for that family.  So yes, largely I do agree with Nick.

I possibly agree less vehemently than I would have done two months ago. I think that DJ Crichton suspects now, as I did then, that the 26 week mandate was part of a greater political drive to faster and more adoptions and that troubled families weren’t going to be given a fair and reasonable chance to turn things around.  My only interpretation of the recent batch of Court of Appeal cases is that there is some judicial moving around of chess pieces on the board to lay the foundations for less adoptions and more Care Orders at home, with Local Authorities being ordered to hold onto higher levels of risk than they have historically been prepared to, and to provide more services at home to families than have historically been available.

It might be argued that this is long overdue, it might be argued that as we have a Child and Families Bill going through Parliament, that a proper and thorough debate about what Society and Parliament wants to do about families who come into the family justice system – are we there to penalise them, to test them, to help them, to prop them up? would have been the appropriate place for such a shift in national policy to happen.


Sharing information between care and criminal proceedings


There’s a CPS protocol about Disclosure of information in cases of alleged child abuse

I really do know that there’s too much guidance and directives, and strategy initiatives descending on us, because it has taken me a week to force myself to open the document.  But then I remembered the unofficial motto and raison d’etre of the Suesspicious Minds blog , which is  “I read this stuff, so you don’t have to”

So, I’ll read it and give as short a summary of it as I can bear.  It all kicks into lively exciting being on 1st January 2014  (I’m really not selling this much, sorry)


Police to care proceedings

1. There’s a form in there (oh goody, another form) at Annexe D, for a Local Authority to fill in and send to the police, to get disclosure within 14 days.  That sounds as though it won’t be necessary to have a court order to seek the disclosure.  [though they might redact, or keep info back if it would prejudice the investigation)

2.  The CPS are apparently going to give priority to making charging decisions in cases of alleged child abuse where there are linked care proceedings  (so perhaps no more waiting to see how our finding of fact hearing panned out before they make that decision)


3. Restrict the requests to relevant material from the police, not a big fishing trawl through everything they’ve got.  Expect to see disclosure requests being more narrowly drawn.

4. Where there are no criminal charges brought, the police will let the LA know and give reasons


Care proceedings to police

1. The LA are to let the police know of care proceedings relating to alleged child abuse [again on a form in Annexe D]  – that might be a bit broad, I would tend to construe it as care proceedings where the allegations could consititute a criminal offence where the child is a victim  [I can’t imagine that the intention would be to alert the police of every care case that arises as a result of heroin misuse, for example]

2. The LA let the police have their files, or access to them, expeditiously – but NOT docs filed in the care proceedings*, and let the police know what schools the children attend.  ( *They mean docs created expressly for the purpose of court, and say that for example medical report on the injuries which existed before proceedings but were filed within them, can still be given to the police)

3.  the LA can provide the police with docs from the care proceedings PROVIDED it is for the purpose of child protection, not the investigation of the criminal offence – but the police can’t USE this in criminal proceedings (including showing it to the CPS) without permission from the Family Court.   (That’s a change, since often the HAVE/USE distinction is viewed to allow the police to show the doc to the CPS to aid in charging decision/decisions about whether to make a full-blown disclosure application)

4. If the police/CPS want to make use of court docs from the family proceedings, they will make a formal application – though the guidance is that they won’t actually attend a hearing for that application unless the Judge directs them to, raising the spectre of four parties in the care proceedings rocking up once to say “we object” and then again a week later for the argument.

5. the LA must send to the police/CPS any transcribed judgment (redacted if necessary) that they get in relation to a case of this kind, and should ask the family court to expedite it where it is known that parallel criminal proceedings are ongoing/contemplated

6. There’s provision for Public Interest Immunity applications (I used to do those a lot, until the criminal courts thankfully determined that it wasn’t a DUTY to assert PII all the time, and the LA could restrict the applications for issues which were particularly vital or delicate that there was a wider public interest in not having social services docs get into the criminal proceedings)  – these days, it is only likely to be info on children who are not victims or anonymous referrers identity which is the subject of a PII consideration.


Linked directions hearings


This is actually new – I’ve done it once or twice in particularly tricky cases, but now there is a protocol which allows the Judge in either limb to consider whether it would be helpful to have a joint directions hearing of the care and the crime, so that any issues /conflict can be thrashed out.  If you were wondering, us family lawyers have to go to the criminal court – the people in wigs and gowns can’t travel to us.  The directions hearings will be linked, but not combined (there are some tricky differences in law and procedure that means just having a joint hearing is not possible). In effect the care people all go into the criminal one and listen, and then if necessary the crime people or some of them will ask to come into the care hearing.


Despite my reluctance to read it, it isn’t actually bad, and not as long-winded as it could have been. Nothing immediate springs to my mind as a terrible omission (apart from the guidance being utterly silent as to whether the police can charge for disclosure, which we were promised would be going away. One could argue that given that the guidance doesn’t say that they CAN, that means they CAN’T.  But no doubt those arguments will continue over the next few years)


Historical amputations and lessons


Warning, yet again this blog post contains testicles – like the last one (and no doubt, some critics would say, most of them so far have been b******s throughout)


In the early days of surgical procedure, one man stood as a giant amongst his fellow professionals. Liston, often called “The Fastest Knife in the West End”.  In those days, prior to anaesthetics, the priority was to get the job done quickly, to get the ordeal over with as soon as possible and hopefully leave the patient alive.  One of Liston’s specialities was limb amputation, and he was well reknowned for being able to remove a limb in less than two and a half minutes. Of course, during one of his lightening fast amputations he took the patients testicles along with the leg. On another, it is said that he was sawing and cutting so fast that he took his assistant’s fingers off in the process, and also accidentally cut a nearby spectator. As the patient, spectator, and assistant ALL died of their wounds, this is said to be the least successful operation in history, having had a 300% death rate.

BUT overall , the death rate in Liston’s procedures was 1 in 10, as opposed to the usual 1 in 4.  And of course, Liston left medicine with one of the biggest advances ever, being the man who introduced anaesthesia to British medicine and gave it world-wide credibility (the chloroform he used was in practice in America, but Liston popularised its use).  Ironically of course, this made his lightening fast surgical skills rather redundant, as for the first time a surgeon could work with care and precision without risking the patient’s life.


It occurs to me, therefore, and this little vignette seemed a decent illustration of it, that speed isn’t always the best measure of something, and that being faster and faster for the sake of it doesn’t necessarily achieve the best results. The Family Justice Review looked very carefully and thoughtfully at how we could make care proceedings more efficient – meaning both faster and less costly, taking as an unspoken premise that our system was already getting good results and what we had to do now was just get them quicker and cheaper.  We already had the leg amputation techniques down pat, we just needed to get more efficient at it.

As has been evident to me from writing this blog, and thrown into even sharper focus with the furore about the decision of the President in Re J 2013, there’s a counter opinion to that unspoken premise. There are plenty of voices saying that actually, we aren’t currently getting the core function of family justice (to achieve the right and fair outcome in cases) and that speeding up the process isn’t going to put that right.

Now, I happen to believe that in the overwhelming majority of cases, if one looked at them independently, they would be achieving the right and fair outcomes. One can’t realistically expect a parent who loses their child to feel anything other than hurt and aggrieved and devastated. You’re not ever going to reach a system whereby every parent nods at the end of the case and says “Yeah, that was a fair cop”, but are those who speak out about the system just parents who haven’t come to terms with an awful and painful (but objectively fair decision) or are they actually as they report, the victims of injustice? Are even some of them?


I don’t mean do social workers sometimes make mistakes? Of course they do. All professions make mistakes. I mean, do we have confidence that the system we have in place – which gives the parents the chance to see the evidence against them down on paper, to see all relevant records, to have free legal advice, to question witnesses who accuse them of things, to call their own witnesses to support them, and all of that being determined by a Court who are unbiased and fair and start from the principle that children ought to be at home with parents if at all posible – does that system, catch the times when social workers have got it wrong, have come to a conclusion that might not be the best for the child?

I personally believe and hope that our system does that, but it doesn’t really matter what I believe and hope. We deal in evidence.  When the State is given power by the Government, to make recommendations about whether children should live with families, or be adopted, and where the Court is given power by the Government to make the decisions about whether those recommendations are correct; we need to remind ourselves that those powers are exercised in the name of the public, and it is therefore essential that the public have confidence that a system is in place that whilst individual errors might sneak through from time to time, is not inherently flawed or failing.


This is a debate which needs to take place. Not just ‘how can we do it cheaper, how can we do it faster’   – but is the system strong enough to get things right and learn from those cases where mistakes are made?  It was very easy in Re J to allow criticism of social workers to take place in the public domain, but did the Court really “own” their own decision-making? That child was removed, and remained in foster care because the Court decided so. The LA ask for the orders, but the Court decide whether or not to make them. If there’s blame there  (and we really don’t know about Re J, because no information about the case is in the public domain) part of that blame rests with the Court too.

With that in mind, I can see why the President is in favour of greater transparency, both in his plans to publish anonymised judgments as a matter of routine and in the RE J case of allowing criticisms of the system in language that might seem emotionally loaded to remain in the public domain (so long as the identity of the child remains secret). In doing so, an awful lot changes, and as yet, we don’t know how much will change and in what ways. As the ruler of China said about his thoughts on the French Revolution “It is too early to say”


With these changes, the 26 week timetable, the financial pressure on family law solicitors and the prospect of more and more advice deserts spreading across the country, these are watershed moments for family justice.  I’ve seen in a relatively short few years, cases move from the occasional parent being a heavy cannabis smoker to large proportions of cases being about heroin and crack addiction; I’ve seen the internet move from dial-up and “Page not found” – effectively a slower form of Ceefax, to becoming a fixture in most people’s lives, somewhere that can make publishers, documentary makers, journalists of almost anyone who chooses to be one. The times, they are a changing.


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