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Category Archives: family justice modernisation

View from the President 2 : Into Darkness ?

Posted on May 23, 2013 by suesspiciousminds

The President of the Family Division has published his second bulletin/speech/rallying cry/let’s get ready to rumble.

This is backing up a lot of what is rumoured to be in the new PLO and represents a significant shift in judicial mindset from the current practice. Less paper, more analysis, is the “too long, didn’t read” summary

 

It is an important precursor to the PLO and is worth reading in full

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/pfd-process-reform-revised-plo-may-2013.pdf

 

 

It confirms that the thinking is for a CMC on day 12  (I’ve already written about what that would mean for any parent solicitor seeking an expert assessment)

 

It confirms the thinking that we would basically have three lots of material – that filed in the Court bundle  (slimmed down, almost to ring binder status), a set of primary disclosure which is given to the parties and choice bits might find their way into the Court bundle but it doesn’t go to the Judge until that sifting process is done, and effectively a list of unused material which the parties may seek discovery of.

 

This reinforces really that counsel who will be running the case on behalf of the parents needs to be involved throughout – it won’t be any good someone sitting down and prepping a five day trial on the Friday before, because it will be too late to realise that there’s something useful in those papers which haven’t been before the Court.  Of course, continuity of counsel is great and very important anyway, but it comes at a price – there has to be some resolution of the conflict between counsel’s availability and when the Court can accommodate hearings, and I’m yet to see a proposal for this.

 

It confirms that the Court don’t want to see any documents that are older than two years   (for my own part, I assume that for that purpose they don’t necessarily mean to exclude thresholds or judgments of previous proceedings, but everything else would go)

 

At the same time, there is a strong imperative to produce documents that are focused and succinct. The social work chronology must contain a succinct summary of the significant dates and events in the child’s life. The threshold statement is to be limited to no more than 2 pages.

 

 

Well…. yes with a but.  If you pick up a file of previous proceedings that was dealt with by someone else, from years ago, or from another local authority, the final determined threshold is a really decent way of seeing what the problems and concerns in the case were – not the allegations, but what was finally determined. A two page one isn’t going to be much use (unless we have to run alongside it an old-fashioned meaningful Guardian’s report which draws together the entire case)

 

We must get away from existing practice. All too often, and partly as a result of previous initiatives, local authorities are filing enormously voluminous materials, which – and this is not their fault – are not merely far too long; too often they are narrative and historical, rather than analytical. I repeat what I have previously said. I want to send out a clear message: local authority materials can be much shorter than hitherto, and they should be more focused on analysis than on history and narrative.

In short, the local authority materials must be succinct and analytical. But they must also of course be evidence based.

I worry there that we are just going to have hour upon hour during final hearings of  “ Well, this isn’t in your statement”      and rightly “My client hasn’t been able to see this in your statement, and therefore hasn’t been able to deal with it before now”

And on the issue of experts

 

 

One of the problems is that in recent years too many social workers have come to feel undervalued, disempowered and deskilled. In part at least this is an unhappy consequence of the way in which care proceedings have come to be dealt with by the courts. If the revised PLO is properly implemented one of its outcomes will, I hope, be to re‐position social workers as trusted professionals playing the central role in care proceedings which too often of late has been overshadowed by our unnecessary use of and reliance upon other experts.

Social workers are experts. In just the same way, I might add, CAFCASS officers are experts. In every care case we have at least two experts – a social worker and a guardian – yet we have grown up with a culture of believing that they are not really experts and we therefore need experts with a capital E. The plain fact is that much of the time we do not.

 

 

Social workers may not be experts for the purposes of Part 25 of the Family Procedure Rules 2010, but that does not mean that they are not experts in every other sense of the word. They are, and we must recognise them and treat them as such.

 

 

One assumes that the Court of Appeal  (which has several of the drivers of the family justice modernisation sitting on it) will this time around, back Judges who make robust case management decisions, rather than slap them, which is what brought the PLO and the Protocol to their knees.

 

I’m not so sure – it seems to me that faced with an individual case where rigorous application of the new 26 week principles seem to result in unfairness and prejudice to a child’s chance to be brought up within a family, the Court of Appeal will do what is best for that individual child, rather than the system as a whole. That’s what they are charged to do, and it seems to me proper that they do that.  It will depend, of course, on the detail and flavour of the first cases that come before them on   :-

 

(i)                 I was refused an expert because it would have gone out of timescales

(ii)               I was refused for my Auntie Beryl (who used to be a foster carer in Croydon) to be assessed, because I didn’t realise it was going to end up with adoption, so I didn’t tell her my child was in care until week 19.

(iii)             The expert said I could parent my child and make the changes if I was given six months of help, but the Court made a Care Order.

 

 

And whether the cases that come before the Court of Appeal are strong on their facts.

[If you are thinking, by the way, that the subtitle to the article is a gratuitous excuse for a Star Trek reference and a chance to put in another picture of Benedict Cumberbath for the benefit of Ms Suesspicious Minds, you would be correct]

benedict

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“On the twelfth day of proceedings, my true love sent to me…”

Posted on May 7, 2013 by suesspiciousminds

 A purposeful and robust CMC

Or that is the plan in the imminent revised Public Law Outline anyway.

Let’s have a look, day by day, at what that might mean for the beleaguered parents solicitor.

On the first day of proceedings, my true love sent to me….

A notice from the Local Authority (don’t worry, they aren’t all going to rhyme)

I shall  assume that the notice is served on a Monday, marking day one of the proceedings, and the client promptly reacts to that by wanting an appointment with a solicitor, and they are able to get one that same day. Luckily, the solicitors diary has been freed up by the helpful LASPO changes, hurrah.

Day twelve is therefore a week on Friday.

That will, as we now know, be the CMC. Under the revised Family Procedure Rules 2010 and assorted Practice Directions, if a party seeks an expert assessment, they have to lodge a draft order and the raft of information with the Court not less than 2 working days prior to the CMC.

If you haven’t done that by the time of the CMC, it is very very unlikely that you’ll be getting an expert assessment.

So, by day 10 (the Wednesday of the second week), the parent’s solicitor needs to have drafted that order, got all of the information, and lodged that with the Court. Let us assume that the solicitor has no time out of the office and is able to draft all of that documentation ON THE VERY SAME DAY THEY GET THE INFO FROM THE EXPERTS

{This may not actually be realistic, I am looking at a counsel of perfection here, as if that needs saying}

Thus, the expert needs to have responded to all of the requests for information by Day 10. How long do we think we should give them to do that? Well, we’ve got a weekend at days 6 and 7, so it probably means the solicitor needs to send the expert the request by day 5. That gives the expert the grand total of three working days to complete all that information.

Our fantastically dedicated and efficient solicitor (and their fast-typing assistant)  sends the request for information out on the very same day that they draft the request, and they will do it all by email, because post would make this utterly impossible – that therefore means that the solicitor needs to have everything in place to know what expert they want, what questions are to be asked, by day 5 (which is probably the day after the first hearing).

So no prospect of getting any disclosure in, and you will know where the child is placed in the interim, and what the Guardian’s view of the case is for a whole day before making those strategic long-term decisions about expert assessments.

Day 1 Monday papers received – client comes in with all of them promptly

Day 2 Tuesday

Day 3 Wednesday Day

4 Thursday The first hearing, probably

Day 5 Friday The solicitor needs to identify what expert assessment might be required, formulate some questions, find some suitable experts and send off the request for information as required by the Practice Direction

Day 6 Saturday

Day 7 Sunday

Day 8 Monday

Day 9 Tuesday

Day 10 Wednesday Expert responds to the request for information, solicitor completes and lodges draft LOI, draft order and all the requirements under the Practice Direction

Day 11 Thursday

Day 12 Friday CMC

Oh, and you probably have to write your client’s statement too in that period. Luckily, as you can see, there are a full 5 working days where you are doing nothing whatsoever but twiddling your thumbs. [Apart from, you know, reading the papers, taking instructions, giving advice, contesting an ICO, preparing arguments as to why there should be an assessment, and looking after any other client you happen to have]

We are lucky on this plan that the care proceedings are issued on a Monday, as we only lose two days to weekends. If the proceedings are issued on a Friday, we lose four days to weekends. Heaven help any issued just before a bank holiday weekend.

I think if I were an expert, I wouldn’t be putting down any deposit on a new conservatory or a holiday cottage in the South of France, I suspect with that sort of timetable, instructions might well be drying up a bit.

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Devon knows how they make it so… necessary

Posted on April 25, 2013 by suesspiciousminds

 

I was going to blog about the new High Court decision in  Devon County Council v EB and Others 2013, but John Bolch of Family Lore not only beat me to it (which is usual) but he said everything that I wanted to say.

So, I commend his feature on it to you.  If you don’t already follow the Family Lore blog, then you should.

I suspect we are about to get a Court of Appeal decision (I hear these whispers) that clarifies that “necessary” in the context of “is this expert necessary” means something rather akin to “If I am to continue living, it is necessary that you stop strangling me”    [what we lawyers might call the Dudley v Stephens interpretation of the word 'necessary'] and moving away from this namby-pamby idea of necessary in that context being anything to do with uncovering the truth, or delivering justice, or providing a fresh pair of eyes on a pivotal and life changing decision, or article 6.

Anyway, in the meantime, read this authority whilst you can still potentially rely on it.

http://www.familylore.co.uk/2013/04/devon-county-council-v-eb-ors-minors.html

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“The horse DEFINITELY goes at the BACK of the cart”

Posted on April 18, 2013 by suesspiciousminds

Without further comment, the important part of the speech that the President gave on the process of reform  [the whole speech is good, actually, and is short]

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/pfd-update-process-of-reform.pdf

 

 

26 weeks

A comparatively small number of exceptional cases apart, we can and must meet the 26 week limit. We can, because various pilots and initiatives are not merely showing us that it can be done but, even more important, showing us how it can be done. We must, because if we do not, government and society will finally lose patience with us. I believe it can be done and I am determined to do everything in my power to make sure that it is. My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks

 

[Okay, I lied about no further comment – three cheeky bits. One, this is the umpteenth hint I have seen dropped about it being likely that the Government will take the whole family justice system away from judges and lawyers if we don’t hit 26 week deadlines.  And two – the Children and Families Bill hits committee stage today, which is the first time that any of it has been looked at in any detail at all. It isn't law yet.

 And finally of course, the President can introduce, if he wishes, a Practice Direction saying that the PLO timescale is to be slid down from 40 weeks to 26 weeks, and then it will be LAW that is to be followed, rather than nod and a wink POLICY]

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Reversing the dilution of “homeopathic’ Guardians?

Posted on February 18, 2013 by suesspiciousminds

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

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

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

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

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

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

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

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

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

By first hearing

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

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

 

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

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

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

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

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

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

 

 

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

 

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

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

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

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

 

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

 

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

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

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

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

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

 

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Court of appeal sweepstake

Posted on February 12, 2013 by suesspiciousminds

Yet more pondering about the 26 week timetable unofficial roll-out a year in advance of the projected Children and Families Bill becoming law, and whether there is a hint in the Family Modernisation second update?

 

 

This continues to trouble me, and I know others. I warned way back in April 2012 that the new Court computer system seemed to have implemented by stealth a presumption that a care case would finish in 26 weeks, and that reasons for not doing so would have to be recorded, and that this was inevitably going to have an impact on the timetabling of cases

 

 

http://suesspiciousminds.com/2012/04/13/gone-till-november-ill-be-gone-till-november/

 

 

 

And here I blogged  back in October about the issue being raised before MacFarlane LJ and Ryder J at the Nagalro conference, and whether or not it was said that there was no such policy of 26 weeks being the starting point and whether a Judge applying such a policy ought to be appealed. We have never got to the bottom of what was really said

 

http://suesspiciousminds.com/2012/10/19/ive-got-twenty-six-weeks-to-go-twenty-six-weeks-to-go-or-have-i/ 

 

 

I am aware that around the country, orders are being made, setting out whether a case should be concluded within 26 weeks or not   [not “This case does not require a 40 week timetable and can be concluded by week 26”, but the reverse “This case has issues that require that the proceedings go beyond week 26”].

 

And they are made at a very early stage of the proceedings.

 

Without a doubt, the Court has the power to determine when a case should be concluded, and set a timetable for the expeditious resolution of the case, and the fixing of that timetable is within the judicial discretion. Robust case management is a vital judicial function, and avoidance of drift and unnecessary delay is a commendable goal.

 

And without a doubt, although the law currently (through the Public Law Outline) works to a timetable of 40 weeks, the Court has the power and discretion to set a timetable that is less than 40 weeks, or indeed more, in accordance with the child’s welfare.

 

What troubles me is the importation of a presumption that the starting point is 26 weeks when there is no law to that effect.

 

 This is not a trivial matter. Decisions about whether pieces of evidence, including independent assessments, can be obtained, are made on the basis of whether they fit with the timetabling of the case, and there is a considerable difference between 26 weeks and 40 weeks  (which is our current ‘starting point’, that can, as I have said, be deviated from)

 

The other pivotal consequence of this is that setting a 26 week timetable as a starting point  (before any of the accompanying measures such as pre-proceedings work being improved and CAFCASS playing a larger role in the early stages of the proceedings have been formulated, never mind implemented) means that a parent simply has far less time to demonstrate change, or to accept the need for change.

 

Those 14 weeks, or 3 ½ months, are a period where the parent could attempt to evidence growth in insight and change, or evidence having tackled the problems. If we remove that, there are going to be cases when a parent who would have made use of it will not have that opportunity.

 

What worries me is NOT deciding the case quicker, it would clearly be better for children to have the decisions made for them promptly and that is in accordance with the often quoted but often ignored principle of no delay enshrined in the Act.  No, it is my underlying fear that cases will end up with different outcomes when they are decided in 26 weeks than if they had run for 40 weeks.

 

 

This is the latest glimmer on it, from the Family Modernisation second update. Bear in mind that this is not a statutory instrument, nor a practice direction, nor guidance, nor anything that could be relied on by law, but it is in a sense a marker.

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/family_implementation_newsletter2.pdf

 

 

This is the passage I am interested in :-

 

One of the key clauses in this Bill is that care or supervision orders should be determined without delay and in any event within 26 weeks beginning with the day on which the application was issued.

 

Although this 26-week time-limit will not be a legal requirement until the Act is enacted (probably in April 2014) the President is keen to encourage those involved in the family justice system to continue to use the interim period before implementation to develop their practices to prepare for commencement. Cases should be managed by judges to reach a just conclusion without unnecessary delay.

 

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in up to 26 weeks or more dependent on the facts of the case

 

 

I would have preferred this to be far less ambiguous. The first two paragraphs I agree with entirely. The third I find to be unclear  – it doesn’t condemn the practice of setting 26 week timetables a year in advance of this becoming law. It doesn’t say, what one would have hoped, that there is no starting point of 26 weeks, and that whilst it might be appropriate in some cases, the timetabling exercise should not be carried out with that “starting point” in mind.

 

It is nowhere near as strong as the remarks which were reported to have been made by the senior judiciary at the Nagalro conference (though as we know, we shall never really get to the bottom of what precisely was said)

 It is perhaps interesting, and illustrative of the fact that the 26 week target  has indeed been secretly rolled out that the wording is not

Courts already have an obligation to timetable each case and the timetable for the child may anticipate proceedings being completed in 40 weeks or less dependent on the facts of the case

 

but the reverse, that it may be 26 weeks or more.  Is this a tacit endorsement of Courts having in their mind 26 weeks as the goal to aspire to?

Given that we know that the Court computer system is recording the cases that finish beyond 26 weeks and reasons for this, are there performance indicator statistics being gathered from that computer system that shows how many cases ARE going beyond 26 weeks, and have targets been set for what those numbers or proportions should be?   Or am I Marvin the Paranoid Android?

 

We remain in limbo until someone whose client is materially disadvantaged by the mental “starting point” of 26 weeks takes the case management decision to appeal.  We also have, at this stage, no real sense of which way the Court of Appeal will go on that.

 

They could take the strict law approach of 26 weeks being a creature of the imagination and 40 weeks being the starting point set down in actual law, or they could go the judicial discretion, case management powers and avoiding delay approach.

 

 

So, place your bets – will the first appeal be from the North, South, East or West of England, and will the Court of Appeal back the Judge or back the PLO?  The Court of Appeal haven’t shown much love for the PLO to date, but generally in slapping Judges who tried to case manage in accordance with its principles where the Court of Appeal felt that led to unfairness. So on the body of their decisions, my gut is that they should be slapping this 26 week starting point. But I would not put money on it going that way.

 

[I’ll emphasise again for clarity, I see nothing wrong with a Court looking at the individual case and determining that this case should, on the issues and facts, be resolved in 26 weeks, or 19 weeks, or 52 weeks that seems to me to be a perfectly proper judicial decision. 

 

My issue is with an unwritten principle that ‘all things being equal, a care case should finish within 26 weeks, and there would need to be reasons to go beyond that’ when that is not currently the law.  Or even that this is a perception which is being allowed to persist, there not being a clear statement to the contrary. ]

 

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Letters of Destruction

Posted on February 1, 2013 by suesspiciousminds

 

You may well have heard that the new guidance on the instruction of experts came into force today.  If it is actually enforced, it will significantly reduce the number of experts and at the same time significantly increase the amount of preparatory work prior to requesting the involvement of an expert.

 

The Ministry of Justice published a jolly and triumphal press release about it, here

 

http://www.judiciary.gov.uk/media/media-releases/2013/tighter-rules-introduced-on-expert-evidence-family-cases

 

“New rules come into force today which will mean judges can streamline proceedings in family courts by reducing the number of expert witnesses who have to give evidence.

Up to now, evidence from experts including psychologists, doctors and others would be heard if it was “reasonably required”. Now the judge will apply a tougher test and only allow the evidence if it is “necessary”.

The President of the Family Division, Sir James Munby, said:

“There is no question of families being denied the chance to call evidence they need to support their case or being denied a fair hearing. But the new test gives judges more control over expert evidence in family proceedings. The rule change gives family judges the means to make robust case management decisions to make sure the expert evidence is focused and relevant.”

“ This change underlines the key role of the court in determining what expert evidence it requires to help it reach the decisions in a case.

“This change is a vital component of the active judicial case management that will be needed to prepare the ground for the new Single Family Court, due to come into being in April 2014.”

The rules substitute a new Part 25 (Experts and Assessors) into the Family Procedure Rules and will apply to existing proceedings as well as those started after today’s date.

In addition, controlling the use of expert evidence has been added to Rule 1.4 of the Family Procedure Rules governing active case management.

The key changes to the existing Part 25 include:

  • a change to the test for permission to put expert evidence before the court from ‘reasonably required’ to ‘necessary’.
  • a list of factors to which the court is to have regard in reaching a decision whether to give permission, including the impact on the timetable and conduct of the proceedings and the cost of the expert evidence. Additional factors are specified in proceedings involving children. These include what other expert evidence is available, including any obtained before the start of proceedings, and whether the evidence could be obtained from another source, such as one of the parties or professionals already involved in the case;
  • in proceedings involving children, an application for permission to instruct an expert should state the questions which the expert is required to answer and, where permission is granted, the court will give directions specifying the questions that are to be put to the expert.”

 

 

I was interested in the very last bit  – the Court approving the questions and setting them out in the order approving the instruction, because I wasn’t entirely sure that this claim was actually delivered in the changes, so have pressed a little further, and found that it IS, if the practice direction is followed  (yeah, right) :-

 

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Practice%20Directions/family-div-procedure-rules-2010-practice-directions-amendments-consolidated-04122012.pdf 

 

 

 

Well, it does seem, that if the Practice Direction is followed (ha!)  then rather than coming to Court with a name of an expert and some timescales, there should be a proper application, accompanied by a draft order [my underlining]

 

3.11 FPR 25.7(2)(b) provides that a draft of the order giving the court’s permission as mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a) the issues in the proceedings to which the expert evidence is to relate and which the court is to identify; b) the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

 

(iii) are kept to a manageable number and are clear, focused and direct; c) the party who is responsible for drafting the letter of instruction and providing

the documents to the expert; d) the timetable within which the report is to be prepared, filed and served; e) the disclosure of the report to the parties and to any other expert; f) the organisation of, preparation for and conduct of any experts’ discussion

(see Practice Direction 25E – Discussions between Experts in Family Proceedings); g) the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion; h) making available to the court at an early opportunity the expert reports in electronic form;

i)                    the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence

 

 

 

 

And then also, it appear that the party seeking the instruction should send the draft order and questions in to the Court in advance of the hearing

 

Asking the court to settle the letter of instruction to a single joint expert

6.1 Where possible, the written request for the court to consider the letter of instruction referred to in rule 25.12(2) should be set out in an e-mail to the court and copied by e-mail to the other instructing parties. The request should be sent to the relevant court or (by prior arrangement only) directly to the judge dealing with the proceedings. In the magistrates’ court, the request should be sent to the relevant court or (by prior arrangement only) to any district judge (magistrates’ courts ) hearing the proceedings (and copied to the legal adviser) or to the legal adviser. The court will settle the letter of instruction, usually without a hearing to avoid delay; and will send (where practicable, by e-mail) the settled letter to the lead solicitor for transmission forthwith to the expert, and copy it to the other instructing parties for information.

 

 

 

 

Well, my first cynical take on this is that this simply won’t happen. There’s quite a lot of this that was already in the Practice Direction on Experts which everyone cheerfully ignored. It is that traditional Practice Direction stance of rather than making two or three solid suggestions that everyone can follow, that you introduce a blizzard of utterly unworkable schemes all at once to the point where everyone takes one look at it and concludes that it is best to just pretend the whole thing doesn’t exist.

 

If it IS going to happen, and that the Judge refuses any expert assessment where the request is not Practice Direction compliant  [and that really depends on whether they are being sternly told behind the scenes that this is what they must do], then we are going to end up with an awful lot of adjourned CMCs, where we have to come back to Court and do it all again, only this time with reams of paperwork.

 [If a party seeks an expert assessment, and doesn't come with all of the paperwork and the CMC has to be adjourned, are they at risk of costs orders? Yet another reason for ducking being the lead on any assessment or proposed assessment] 

If it IS going to happen, two major practice points arise. Firstly, the advocates meeting before the CMC would need to be happening much earlier than the two working days prior that it currently is  (which in reality will just mean a later CMC).  Secondly, whichever of the two parents lawyers decides to be the lead on the instruction of an expert, is going to have a huge amount of work in organising that instruction, far far more than at present, and their profitability (ha!) in the case probably immediately goes down the Swanee river.

 

So, if you are only looking for one expert, expect to see some quarrels at the advocates meeting about whether mother or father’s team should be the lead; as neither of them will really want to take on this burden.  

 

[I also expect that counsel attending these advocates meetings will regularly find in their brief “under no circumstances agree to us being the lead on the expert”   - we squabble about ‘who has to be the lead’ now, when very little is involved, but this is now a massive volume of work]

 

 

This may, cynically, be the way that the Government intend to reduce the number of experts – it hasn’t been possible to get the Courts to refuse assessments  (being that they tend to follow the line of the Court of Appeal, which has been very pro-second-opinion), so they will just make it very very unattractive for those representing parents to actually make the applications.

 

 

So, watch this space for the first appeal from a Court who refuse an expert assessment because this Practice Direction has not been complied with.

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

Posted on January 28, 2013 by suesspiciousminds

 

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

 

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

 

 

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

 

 

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

 

 

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

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

 

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Neglecting neglect

Posted on January 21, 2013 by suesspiciousminds

 

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

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

 

You can find it here:-

 

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

 

 

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

 

 

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

 

Neglect

 

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

 

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

 

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

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

 

 

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

 

 

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

 

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

 

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

 

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

 

 

As do I.

 

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

 

So either :-

 

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

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

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

OR even

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

 

 

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

 

 

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

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

 

 

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

 

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

 

 

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

 

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

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Injustice, the death penalty and… Cloppa Castle?

Posted on January 4, 2013 by suesspiciousminds

This post is by way of being a book review, unsolicited, for a non-fiction book called “Injustice”  by Clive Stafford Smith.

 

I’ve popped you an amazon link here, not because I get any money for doing so, but because I thought it might be helpful

 

http://www.amazon.co.uk/Injustice-Life-Death-Courtrooms-America/dp/1846556252/ref=sr_1_1?ie=UTF8&qid=1357313233&sr=8-1

 

 

The book is written by a British lawyer who now practices criminal defence law in America, specifically death row appeals. 

 

It deals with one particular individual, who was convicted for the murder of two people, a man and his son, in cold blood in a hotel room. He knew the victim and had quarrelled with him, there was an eye witness who described everything, his prints were in the hotel room, and the ballistics expert testified that the bullets fired were compatible with the gun that the suspect had been found to possess by police officers who had stopped him months earlier. The defence called no witnesses, and even the suspect himself did not go into the witness box. He was duly convicted of the murders.

 

Chapter one sets all of that out, and you may, as I did, read all that and say “Well, none of this sounds like an injustice, he sounds bang to rights”

 

Mr Stafford Smith then picks up the case and the story at the point at which the defendant, found guilty and awaiting the death penalty, contacts him to launch an appeal, and the investigation he conducts.

 

More interesting though than the focus on the detail of the particular case (which is compelling in itself) is the analysis of each of the stages and participants in the process, and how Mr Stafford Smith shows that the system itself is inherently flawed.

 

For example, there’s the fact that the jury were told that the prosecution eye witness had passed a lie detector test showing that his testimony was true.  That’s not quite accurate, when full disclosure is obtained after the conviction, because it shows that :-

 

(a)   the eye witness passed some bits of a lie detector test

(b)   he failed other important bits in relation to the witness deposition he gave the prosecution

(c)   The prosecution (including the trial lawyers) knew this

(d)   The eye witness, with the help of the prosecution, then made further depositions, correcting the bits that he had obviously lied about, and to make his version of events fit better

 

 

It gets a lot worse than that, but that was the first bit where I dropped the book in horror and had to pick it back up and read it back to Ms SuesspiciousMinds.

 

 

The author looks at every part of the process – from the police officers who call Crime Hotlines to give ‘anonymous tips’ about people they are about to arrest so they can claim the reward, to the original defence attorney who had been given a flat fee and thus didn’t put sufficient hours into the case (and that if they actually do that on public defender rates the hourly rate they get works out to be about $2.50 per hour), to the jury, to the Judge (in this case, the trial Judge was arrested halfway through the trial for having taken bribes from other defendants in cases – this man’s defence lawyer knew that the defendant had been approached by another attorney who had suggested that if the defendant used them and paid them a large sum of money they would get a successful outcome from the Judge in question, but didn’t think that was worth raising), to the appeal process that essentially decides that you can win an appeal on a technicality but not on evidence that ought to have been put forward by your defence attorney  – i.e if you have a bad lawyer at trial, you get screwed both at trial and later at appeal if he just didn’t do his job.

 

He even shows why an innocent defendant can be the worst sort of client to have – this man knew he was innocent, so why spend money on your lawyer calling lots of witnesses to prove it, why give evidence and tell your side of the story, when of course you can’t be found guilty of murder if you didn’t do it?

 

The author explains that the jurors who get the long legal explanation about the arcane and complex tests don’t always understand them. After they have had the explanations of “aggravating factors and mitigating factors”  when tested, over 50% of jurors gave an explanation as to what mitigating factors were that showed that they thought that mitigating factors were the same thing as aggravating ones, when they are actually total opposites.

 

It is an excellent book and the structure of it makes me think that with the right case, one of the journalists who claim in hand-wringing style to be deeply worried about family justice (whilst their newspapers run pro Fast Adoption campaigns) could write.

 

It also seems to me that Al Alas Wray would be a good case to look at   - not that I am suggesting for a second that any of the professionals in that case were bent, or incompetent, or dumb in the way that some of them appear in “Injustice”  but rather looking at how the system can make well-intentioned, capable, reasonable and competent people get something badly wrong, and how Al Alas Wray might sadly represent the high waterline of British justice being able to get to the bottom of such a potential miscarriage of justice and fix it, whereas the changes coming our way seem to me to reduce the prospects of that in the future.

The bit that I found interesting was the chapter about prosecutors, and the suggestion that it is certain types of people, certain types of lawyer who choose to prosecute criminals.  They perhaps believe strongly in law and order, that the police are generally right, that justice prevails, that the system works, that the people who are convicted at trial were rightly convicted.

 

That did make me think, because of course, my job is sort of analogous to that – I do present cases to Court involving parents where part of my job is to present evidence as to the flaws of their parenting, and sometimes that involves persuading the Court that it is right that their children should no longer live with them.

 

I like to think, and maybe this is my own Prosecutor Bias, that my take on my job is to present the evidence fairly, to play with a straight bat, and that where such an awful decision is taken, it is because it is the right thing to do.  And ultimately, every decision that a child can’t be with his or her parents is a failure, of a kind. It is sometimes the least worst of all the options available on the picture at the time, but it is always a bad thing. I think that’s true of the colleagues I work with too.

 

Perhaps I am deceiving myself. I’m sure also that there are people who don’t approach the job that way. I know that because it wasn’t the way I approached the job when I started.

 

I was young, and idealistic, and believed that my job was child rescue and to protect children from wicked people who would mistreat them. When you come into the world of child protection, initially you do think that people who could abuse children must be wicked and dreadful – it is one of society’s great taboos, after all, the notion of parents harming their children.

 

As time goes on, and particularly with the benefit of having crossed the floor and represented parents against the State, you realise that most of those parents that initially seemed wicked are just scared, baffled, lonely, needy or damaged.

 

 

I used to think that my job was a bit like being on the battlements of a castle under siege, and that it was my job to keep the inside of the castle (the child) safe from the besiegers.

 

I now think that my job is much more like being outside the castle with the parents, and that it is my job to find an appropriate ladder that would be the right one to help them climb the walls and get over into good enough and safe parenting, so that they can be together with their children and the child will be safe and happy.  Sometimes it is also my job to help them up the first few rungs. Sometimes it is my job to realise that the ladder we thought would be right isn’t a good fit and to find another one.

 

Sometimes, sadly, it is my job to tell the Court that despite all of that, the parent got stuck halfway up the ladder and couldn’t get over the good enough or safe parenting wall. Sometimes that they got halfway up and climbed back down a few rungs. Sometimes that they looked at the ladder and decided they couldn’t do it at all, paralysed by vertigo, or influenced by people wanting them to stay on the ground with them.   Sometimes we argue about whether someone is halfway up, three quarters of the way up, or all the way up, or whether they should have another go with a different ladder. Sometimes we argue about whether the type of ladder they need can be found in time, or whether it costs far too much.

 

But it certainly isn’t my job to pour boiling oil on them as they try to climb up. I know some of the readers of the blog won’t believe that, and they are entitled to their belief.   They may well have had personal experience of Local Authority lawyers and social workers yanking the ladder away from under them, greasing the rungs, or pouring that boiling oil down.  That is something I feel bad about – I don’t deny that it happens, but I feel fervently that it shouldn’t.

 

I don’t think it harms any of us to reflect from time to time whether we have that balance right, are we defending the castle come what may, or are we trying to see if someone, given the right ladder can get over the wall and deserves to be inside the castle?

 

 

Anyway, here’s a picture from CloppaCastle, which the older readers may recall.  It had a very nice theme song, containing the words “Friendly enemy”  and maybe that is close to the role that my job comes down to.

 cloppa1

And here’s a link if you want to hear the theme song

 

http://www.youtube.com/watch?v=OK90sLowzGk

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