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Category Archives: social work

Flawed placement order application

 

When you call a case  RE EF (flawed Placement Order application) 2015, you are laying down a marker that this is going to be a judgment that makes criticisms. And so it does.

 

In fact when you read it, had the Judge designated this case as Re EF (Local Authority screw everything up, badly) 2015, that would not cause anyone in the Trades Description Act enforcement department to be concerned.

 

This is a judgment from a Circuit Judge, which means that it is not binding, but lessons can still be drawn from it. It was delivered by His Honour Judge Wildblood QC (who readers may recall fixed the tangle on banning a UKIP parliamentary candidate from allowing his younger children to participate in any political activity)

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B21.html

 

If you are umming-and-ahing about whether to read on, let me give you this titbit.

For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.

 

Still with me? Yes, I thought so.

 

I can’t really better how the Judge opens the case, so I will just quote it.   [When a Judge is kicking your ass and being kind about it, that actually feels worse than being roasted by an angry Judge – just like when your parent tries the “I’m not cross with you, I’m disappointed” is astonishingly effective – at least the first time round]

 

1. Foreword – Of course many cases reveal a few points of bad practice. However it is very rare that so many such points should be gathered into one case. It has taken two years and five months for these proceedings to be resolved. The case was listed in front of me (even though I had had no previous dealings with it save for a short procedural directions hearing 18 months ago) because there were such difficulties with it that it was thought necessary for it to come before me as the Designated Family Judge. I can see why.

2. This is an application for a placement order in relation to a little girl who is 4½ years old and who is already subject to a care order. It is a case that reveals multiple failures. The principal failures have been those of the Local Authority but there have also been failures within the court led process and by those who represent the parties. The delay speaks for itself but, in this judgment, I will set out what has happened. Despite what is said in Re W [2014] EWFC 22 orders of the court have been ignored. In one instance the Local Authority chose to ignore an order of the court (i.e. it declined to carry out an assessment of the father despite having been ordered to do so). In another instance the Local Authority failed to do what it had agreed to do (i.e. issue a placement application within a timescale agreed on the face of an order – by 30th October 2013- choosing to leave it for another four months before the application was issued on 18th February 2014). There has been sequential presentation of applications, as to which there are now the authorities of Surrey County Council v S [2014] EWCA Civ and Re R [2014] EWCA Civ 1625 [para 20]; here a care order was made in October 2013 with a view to the child being placed for adoption and, seventeen months on, I am hearing the placement application. This is the fifth listed hearing of this application for a placement order with each adjournment being necessitated by the inadequacy of the evidence that the Local Authority has provided. The analysis of options is inadequate (and does not analysis to any sufficient degree the benefit to the child of maintaining contact with her natural family). The professional assessments do not weigh up adequately the pros and cons of the competing options for this child (and the experts both gave evidence about the negatives of the father’s position without being asked to consider the negatives of adoption, such as the loss of family contact). The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court). The authority has had permission to investigate available foster and adoptive carers since September 2013; it has not investigated long term fostering as an option at all (despite saying that it would on many occasions – see e.g. page 38 of the transcript of the evidence of the social worker Ms Morley) and despite its apparent searches has had one expression of interest from a couple who know nothing about the specific details of the child. There has been no judicial continuity.

3. I realise that the Local Authority management will be as deeply disappointed as I am that a case comes before a court in this area in this condition. Criticism is often far from helpful and I would much prefer to work with authorities to improve matters rather than deliver criticisms from the bench. However, if I make a placement order I cannot attach conditions to it; as examined in helpful closing speeches, the power to attach contact provisions to a placement order under section 26 of the Adoption and Children Act 2002 bears a large number of practical difficulties (e.g. contact until when?). As Ms Rowsell said in her realistic and helpful closing speech – the Local Authority asks you to have confidence that it will operate appropriately under a placement order but accepts that the past means that there is little reason for it to do so. For reasons that will be apparent, I cannot have any confidence at all that the authority would operate appropriately under a placement order in relation to this child; I have never said that before in a judgment about any authority. The guardian shares my lack of confidence.

 

Although clearly the bulk of the faults here have been with the Local Authority, the Judge recognises that the lack of judicial continuity and control has been a factor as well.  It was wrong to have made the Care Order in the first place when the care plan was for adoption and there was no Placement Order application, it was wrong to have tolerated that drift, it was wrong to have allowed the timetable to get so out of hand.

 

Again, I will pick out one devastating line

 

The social worker who is the social worker responsible for this case, carried out a viability assessment of the father, and wrote the Local Authority’s final evidence has never met the father (except at court).

 

Can I resist the urge here to make a sarcastic aside about how that is standard practice for some (not all) Guardians?  No, it appears that like Oscar Wilde I can resist everything except temptation.

 

 

This next bit is music to my ears – it something that particularly vexes me and I am pleased to see a Judge dealing with it. It is the issue of getting to a final hearing without it being plain what orders each party invites the Court to make.  It is not that helpful to just know that X opposes Y, what you need to know is what order does X propose instead?

The only application before the court is that of the Local Authority for a placement order. There are no actual applications by either of the parents. On the scale of things involved in this case, I advance this point as one of mild criticism only and primarily for the purposes of clarifying what I am dealing with. But there should either have been applications setting out the orders sought or at least a record on the face of orders as to what applications are being pursued. The nearest that one gets is to look at the order at B128 that states that ‘the father wishes EF to be placed with him. The mother wishes for EF to be placed with her. The paternal grandmother wishes for EF to be placed with the father but if not with him then with herself’. On behalf the father I was told that he seeks a child arrangements order. I hope that it is not just legal pedantry to say that the nature of the orders sought should be identified not just for the purposes of clarity and definition but also because some applications involve different procedural requirements – for instance I had no idea whether the paternal grandmother might be seeking a special guardianship order in default of placement with the father. Of course no judge wants to see money and trees wasted in making unnecessary paper applications and it is often acceptable to record that parties are deemed to have applied for orders. But there must be some attempt at formality in establishing who is seeking what orders.

 

On a factual basis, the Gordian knot in this case seems to be that the Placement Order / adoption route was only the plan for this girl, who was 4 1/2 by the time of this hearing, and that her older siblings would be placed elsewhere. A plan of adoption would not only sever her relationship with her parents, but with those siblings. There might be circumstances in which that was still in the child’s best interests, but it is a very important aspect to be balanced in reaching that decision – the Court would need to know why an alternative option (like placing with father or long-term foster carer) which would not have the detriment of ending the sibling relationship would not be right for this particular child. And that never really got answered to the Court’s satisfaction.

 

For some reason the two experts instructed in the case weren’t asked to address this issue in their reports, and thus didn’t. And the social worker didn’t address the sibling relationship and merits of contact in  final evidence.

As it is the attempt to weigh up the competing options within the paperwork has to be taken from Mr Gray’s final statement. There are any number of difficulties with that document. Firstly, there has been no Local Authority assessment of the importance of contact between the siblings; the arrangements for this have largely been left to the three sets of foster carers. Secondly, the only assessment of the father (including three contact sessions) that Mr Gray wrote was the positive viability assessment; the quality of contact with the father and the importance of his role are not analysed when considering the options. Thirdly, the difficulties in finding adopters was not considered (the Local Authority has already had 17 months to do this). Fourthly, the fact that the Local Authority has not looked for foster carers at all is not mentioned

 

In a case like this, the search for foster carers would be a vital component. If you search and can’t find any, it is an important piece of evidence about the likelihood of being able to find one in the future. If you find some, then you have provided the Court with concrete options to choose between. You can’t really sidestep the issue by not even looking.

Especially when your care plan six months ago when the Care Order had been made was to triple track and look for adoptive placements, foster placements and assess dad.  Having done none of those things, it wasn’t really even a single track.  Having said they would in effect build a tricycle, the Local Authority turned up for this final hearing with a care plan where the wheels had come off completely.

The care plan states that the Local Authority would plan to search exclusively for an adoptive placement for six months following the making of a placement order. That amounts to a departure from what was being said in September and October 2013 where the case was to be twin tracked between fostering and adoption and permission was given for this to occur. Further, the Local Authority was again given permission to seek adoptive and long term fostering placements in September 2014 (i.e. six months ago) with the intention that it would pursue a triple track analysis – adoption, fostering and placement with father. It did not pursue fostering at all, failed to assess the father properly despite being ordered to do so and can offer one tentative enquiry about adoption from a couple who expressed interest ‘before Christmas’ and have not been investigated further.

 

And what of the future? And sibling contact? What were the Local Authorities proposals?

19. If an adoptive placement is not found in six months the Local Authority says that it would give further consideration to long-term foster care. In six months time EF will be five and in her second year of school education (she is just ‘rising five’ for this school year – C10). Thus her start at school in September 2014 took place from interim foster care 11 months after the care order was made and seven months after the placement application was made.

20. The care plan is non-specific about contact between the three siblings; at C179 the social worker says: ‘direct contact would be promoted [between the three siblings] if this was assessed as being in EF’s best interests and risks associated with their ongoing contacts with the wider birth family could be mitigated. Adopters open to promotion of direct contact would be recruited by the agency’. The guardian said this about inter sibling contact in her oral evidence: ‘The contact between EF and one of her brothers has included an overnight stay. There has been inter sibling contact three times a year with all three children together but there is also separate monthly contact between EF and one of the her brothers and less frequent contact between EF and her other brother. Ideally, if EF is placed for adoption, an adopter would have to accept inter sibling contact although this will not be easy because the parents will continue to have contact with the boys and adopters might find that difficult’. Having considered matters overnight, and after a period of adjournment for reflection, the guardian through her solicitor and in her presence said that one could not have any confidence that the Local Authority would deal with this issue of inter sibling contact appropriately and there was a very risk that it would not press for or find adopters who would tolerate inter sibling contact. Thus there was a very real risk that a placement order would result in this child losing all contact with all of her family members.

21. The care plan also proposes indirect (i.e. written) contact between the children twice a year (which is not easy to envisage given the ages of the children) as well as cards at birthdays and Christmas. As to the parents, maternal grandmother and paternal grandparents the care plan suggests that they should have indirect contact only, once a year and Mr Gray, the social worker suggests at C179 that ‘this enables the continued development of [EF]’s identity and comprehension of her birth family story within safe parameters’. When considering the proposals for contact nothing is said about the quality of the father’s contact to date. It was agreed in closing speeches (on my enquiry) that the contact between this father and this child has been ‘good and loving’. The contact notes are at enclosure F.

Remember that one of the wheels on the Local Authority’s care plan (on which the Court made a final Care Order) was an assessment of the father? What happened with that?

  There was also a preliminary parenting assessment of the father at C108 by the social worker, Mr Gray, dated 22nd October 2014. It suggested that further in depth assessment of the father was necessitated and that this would take two months to complete [C111]. The preliminary report was positive in its assessment of the father and suggested at C110 that a good attachment had been observed between the father and EF (a suggestion that Dr Edwards doubts to be correct – E37); however, at C111 Mr Gray said that there were a number of matters not covered by the assessment such as home life, providing EF with appropriate clothing, getting her to and from school, managing her behaviour and providing her with a stable environment. What is more, the person writing the assessment is Mr Gray, who has never met the father except when attending court hearings (again I say more about this later).

41. Notwithstanding the positive nature of Mr Gray’s initial report, there was then a statement filed on 6th November 2014 by Mr Tyrrell of the Local Authority child permanence team (C131); in it Mr Tyrrell stated that the Local Authority did not intend to assess the father because the ‘timescales for EF would not allow them to do so’ [C135]. The order of the Recorder of 3rd September 2014 states at paragraph 14: ‘The Local Authority shall carry out a parenting assessment of father and this shall be filed and served by 17th October 2014’. The Local Authority accepts on the face of Mr Tyrrell’s statement that it did not carry out a full assessment in accordance with that order [C135]. That is inexcusable. The order to carry out a parenting assessment means that the Local Authority should carry out a proper parenting assessment; on the very face of Mr Gray’s statement his work was not a parenting assessment, as he himself accepted in evidence.

42. The Local Authority’s decision not to assess the father properly was deliberate and considered; since that decision was in direct contravention of a court order I do not see how I can describe it other than as contemptuous. Nor do I accept that an assessment of the father would have taken two months; it would have taken as long as those involved chose.

 

So there was a positive viability assessment of father, the Court ordered a parenting assessment of him be filed and the Local Authority decided not to do it.

I have certain withering views of my own about how helpful it is for the President to cascade judgments suggesting that parties who are four hours later in filing a document should obtain a Court order in advance extending the deadline, but this is a kettle containing entirely different fish altogether.

We have all been late, we probably (despite our sincere desire for the contrary) will be late in the future. I HATE being late, it makes me feel sick and stops me sleeping. But it does happen.  But if you get ordered to file an assessment of a father, you file something, even if it is late. You don’t just decide not to do it. For a case where your plan is adoption.

 

In his oral evidence Mr Gray said this. When he carried out his parenting assessment he did not see any of the case papers from the care proceedings. He did not meet the father when preparing it (and has never met him even now despite having been the social worker for EF since the end of October 2014 and being called as the only witness for the Local Authority at this hearing). Is it acceptable for a social worker to prepare care plans and file Local Authority evidence, including evidence of options and services, without ever meeting the one member of the family who seeks to care for the child concerned? One can never say ‘never’ to that question but, on the facts of this case, it was obviously inappropriate for Mr Gray to come to give evidence without ever meeting this father.

44. Mr Gray said that, since his involvement, the Local Authority has discounted the parents and so it was not thought appropriate for him to meet with them. He was not aware that the court had adjourned a final hearing because of the inadequacy of the Local Authority evidence particularly in relation to the assessment of the father. He accepted that his assessment was not a complete parenting assessment and said that he told the legal department that there needed to be a full assessment of the father.

45. There is no analysis of the contact that has taken place between the father and this child save for the three contact visits that Mr Gray did not himself observe; Ms Griffiths, who did observe them, said this at C110: ‘in general, the nature of all three observations does suggest a good attachment between EF and her father. Indeed, there was one poignant moment shared by them both when they discussed how much they missed each other’.

Poor Mr Gray gets somewhat hung out to dry here – he picked up the case after the Care Order was made and believed that what he was inheriting was a completed piece of work where all that really needed to be done was the paperwork to do a Placement Order application. That was far from the case, and there appears to have been a serious breakdown in communication as to what the new social worker would need to do in this case – the triple track of exploring potential adopters, exploring foster care and assessing dad (all against the backdrop of what each of these options might mean for EF and her siblings)

Remember all of the recent judicial strictures about keeping the bundles to 350 pages? Bear this in mind

 None of the important documentation from the care proceedings was in the court bundle and so I called for the court file to be retrieved from the basement of the court office. It is from that file that I found the order of the District Judge of 1st October 2013. I also found the care plan that was made on 20th September 2013 which states that ‘a search to identify a suitable adoptive placement for her will be made; alongside this a long term foster placement will be sought as a fall back position’. No long term placements have been identified. The care plan states that the child ‘is due to be considered by the agency’s decision maker on 16/10/13’ (i.e. 15 days after the final care hearing – why? – the care plan proposed adoption).

 

There were even problems with the threshold – the basis on which the original Care Order had been made.

 

 

 

 

 51. There is no record within the bundle about the terms in which the threshold criteria were fulfilled for the purposes of the making of the care order. Indeed, on my exploration of the two large court files there was no copy of a threshold document on file. I had to ask for it to be produced and it came into being on the second day of this hearing.

52. Further, the District Judge said this in his October 2013 judgment: ‘I incorporate into this judgment by reference two important documents, firstly the agreed final threshold document that set out the agreed facts as at the time that the application was brought and, secondly, the findings of fact that I have already made on the previous occasion’. When I asked ‘what findings were made and on what previous occasion’, there was some confusion because, within the court file, there was a schedule of findings that the Local Authority was seeking with responses from the mother. I asked: ‘Had there been a fact finding hearing?’ It appears that there was not. The District Judge did deliver a judgment in September and stated that his October judgment was a continuation of that earlier judgment. I do not have a transcript of what he said in September.

53. It is very unfortunate that I do not have a transcript of what the District Judge said in September because it was in the September that the Judge reached the conclusions that I have already set out above. Plainly it is important for me to understand the welfare basis for that. I would have thought that the Local Authority would have wanted such a transcript also so that it could guide their work. Emphasising the importance of a judgment is not judicial pique or self importance. A judgment is given after everyone has had an opportunity to have their say and it represents the rule of law in practice. If judgments and orders are just ignored, as they have been here, what follows? Further, the judgment allows people to distinguish between what is established fact and what is no more than allegation. It also explains why people are being ordered to do things.

54. The threshold document relates to the time when proceedings were started – that is 2012. Therefore it does not record the issues that were contemporary at the time of the care order and led to the conclusion that only care with a view to adoption would do. Further the document suffered from many of the deficiencies identified recently by the President in Re A (a child) [2015] EWFC 11 (the Darlington case); for instance: ‘there are concerns as to the rough handling of the children ….there are concerns as to the general care of the children’. The threshold criteria were fulfilled on the basis of the violence between the parents, the neglect of the children, the parents lack of engagement with an assessment, the social hostility towards the parents, the parents misuse of drink and drugs and the parents’ failure to seek medical advice for the children after they suffered ‘unexplained injuries’.

If you are doing a quick head count – in this case the bundle didn’t have the right documents in it, the threshold was both wishy washy and hadn’t actually got put in the bundle, the social worker hadn’t met the father he was assessing, the experts hadn’t been asked to assess the most important thing, a triple track care plan turned into a ‘what’s a track?’ care plan, the Local Authority had been ordered to file an application for a Placement Order and filed it four months late, and the Court had granted a Care Order with a plan that looked like adoption without actually having a Placement Order application to consider (and, it turns out, without the Local Authority having Agency Decision Maker approval to actually do that)

In this case, the Local Authority were not just flirting with disaster, they had bought disaster dinner and had a toothbrush in their bag hoping that disaster would ask them to stay over.

The conclusion

135. Conclusion – I do not consider that it has been demonstrated to me that the welfare of EF requires that she be placed for adoption. I do not consider that it has been demonstrated to me that the less interventionist solution of fostering is inconsistent with her welfare. I think that the detriments of adoption outweigh the advantages as matters now appear. I think it highly unlikely that the Local Authority would twin track the case between fostering and adoption if a placement order were to be made. I think that such an order would be highly likely to result in all contact between this girl and her family ending. I do not consider such an order to necessary or proportionate and I do not consider that the making of such an order would place her welfare as the paramount consideration throughout out her life.

136. I therefore dismiss the application for a placement order. The effect is that EF will remain in care and will continue to have contact with her natural family. I will hear submissions if necessary on another occasion as to the arrangements for contact.

The only crumb of comfort for the LA is that in the face of a judgment like that, there wasn’t a paragraph 137 about an application for costs.

Committal for harassment

 

In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3136.html

 

This is a judgment given by the President. There are, I think, three interesting aspects to this judgment. Aside from him quoting the very famous remark about freedom of speech not extending to the freedom to shout “fire!” in a crowded theatre.   (which is my favourite joke in Rozencrantz and Guilderstern Are Dead)

 

 

  1. The penal notice should be on the face of the order

 

 

So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:

 

“a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order … , a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

 

Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that “A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order”, the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.

 

Paragraph 13.2 of PD37A provides that “The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.” I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had “previously received legal advice as to the implications of breaching the terms of this Order.” In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.

 

Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.

 

I would have two brief points in relation to this – the first is that the President is making use of the term ‘user-friendly’ in relation to the standardised court orders which bears no relation to any accepted definition of the phrase that I have ever seen used. If ten people in the country (outside the MOJ or designers of the form) can be found who say that these forms are a pleasure to use, then I will cheerfully withdraw my remark. I don’t expect to be taken up on that.

 

The second is that the reason the penal notice doesn’t appear on page one of the order is PRECISELY because the template form doesn’t put it there.

 

Be warned people – if you are drafting an order with a penal notice, screw where the stupid form wants you to put the penal notice and put it on the front page. Everything else can be moved down.

 

  1. Harassment of social workers (although the Judge says that harassment of members of the family was worse)

I turn to ground (ii), the allegation that Mr Newman has been guilty of “harassing” employees of the local authority. The allegation is based on the contents of fourteen emails sent to various of the local authority’s employees (who I will refer to respectively as R, J, K, L and V) between 17 July 2014 and 18 August 2014 inclusive and a message sent on 18 August via facebook to the mother of another of these employees. I set out in the Table annexed to this judgment the dates and recipients of each of these email messages and, in full, the text of each message exactly as sent. The facebook message was sent on 9 August 2014 to the mother of another social worker, Kimberley H. The message read “This is what Kimberley does.” Attached to the message were newspaper articles about social workers who boast about removing children.

 

Mr Newman admits the authorship of each of these messages, and does not dispute that each of the emails was sent to one or more of the class of persons referred to in paragraph 5 of the order of 16 May 2014. The only question is whether Mr Newman’s conduct amounted to “harassing” within the meaning of paragraph 5. Mr Jenkins submits that it did. Mr Newman says that what he did was neither intended to be nor did it in fact amount to harassing.

 

What the word “harassing” means in paragraph 5 of the order of 16 May 2014 is a matter of construction, and therefore a matter of law. Whether, in the light of that meaning, what Mr Newman did amounted to harassing is a matter of fact and degree. I adopt the same approach as commended itself to the Court of Appeal in Vaughan v Vaughan [1973] 1 WLR 1159 when considering, also in the context of committal, the meaning of the word “molesting” when used in an injunction. All three judges had recourse to the dictionary.

 

“Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

 

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Whether emails constitute harassment will, of course, depend upon the circumstances, in particular the number and frequency of the emails, their content and tone, the persons to whom and more generally the context in which they are sent. Here we have fourteen emails sent in a little over four weeks. On one day (9 August 2014) there were three. Initially, R seems to be singled out; then the emails are sent to a wider group of people. There is a pervading tone of menace: the personalised attacks (“How do you sleep at night?”, “If you have kids ask yourself what would you do to keep them”); the threats (“I have everything ready to completely ruin everyone who stands against us”, “people’s names … spread all over the world along with their pictures”, “set things right before they go terribly wrong”, “Soon your tyranny will end”, “Soon all your names will be appearing on a newspaper”, “someone, someday will be held accountable”, “unless you wish to put your career on the line”, “Hope you are looking forward to an early retirement”, “The revolution is coming are you ready”); the threatening count down; and the repeated unwarranted demands that X is returned.

 

In my judgment this was quite plainly harassment, not just pestering but psychological intimidation. It was deliberate. It was intended to achieve, by the making of unwarranted demands accompanied by menaces, the return of X to his parents notwithstanding the orders of the court. It is a bad case.

 

The facebook message sent to Kimberley H’s mother is, from one point of view, even worse. What aggravates the contempt is not so much the actual message, which in comparison with some of the others is comparatively innocuous; it is the fact that it was sent to Kimberley H’s mother. For someone in Mr Newman’s position to extend his campaign to a member of his primary victim’s family, whether partner, child or, as here, parent, is despicable. It is deliberately putting pressure on his victim by attacking their nearest and dearest.

 

 

Accordingly, I am in no doubt at all, I find as a fact, and to the criminal standard of proof, that Mr Newman is in breach of paragraph 5 of the order of 16 May 2014 as alleged by the local authority.

 

 

  1. The President goes back to Re J, and reminds us that whilst he was permissive, even welcoming of people publishing their stories (if not identifying the child) and even been critical of Local Authorities and professionals, there was still a line that people should not cross

 

 

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed constitutional, importance.

 

The first (para 36), was the recognition of “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system.” I added that the same goes, of course, for criticism of local authorities and others.

 

The second (para 38), was the acknowledgement that the “fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar.” I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for “Society is more tolerant today of strong or even offensive language.” I summarised the point (para 80): “an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.”

 

I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

 

The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.

 

There is freedom of speech, a right to speak. But this does not mean that the use of words is always protected, whatever the context and whatever the purpose. As Holmes J famously observed in Schenck v United States (1919) 249 US 47, 52:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

 

Freedom of speech no more embraces the right to use words to harass, intimidate or threaten, than it does to permit the uttering of words of menace by a blackmailer or extortionist. Harassment by words is harassment and is no more entitled to protection than harassment by actions, gestures or other non-verbal means. On the contrary, it is the victim of harassment, whether the harassment is by words, actions or gestures, who is entitled to demand, and to whom this court will whenever necessary extend, the protection of the law.

 

I do not wish there to be any room for doubts or misunderstanding. The family courts – the Family Court and the Family Division – will always protect freedom of speech, for all the reasons I explained in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523. But the family courts cannot and will not tolerate harassment, intimidation, threats or menaces, whether targeted at parties to the proceedings before the court, at witnesses or at professionals – judges, lawyers, social workers or others – involved in the proceedings. For such behaviour, whatever else it may constitute, is, at root, an attack on the rule of law.

 

I emphasise, therefore, that Judge Wildblood was perfectly justified in granting the injunction in paragraph 5 of the order of 16 May 2014. Such orders can, should, and no doubt will, be made in future by the family courts when the circumstances warrant. I should add, moreover, that the protection of the law is not confined to the grant in appropriate circumstances of such injunctions. Harassment is both a criminal offence and an actionable civil wrong under the Protection from Harassment Act 1997. And, quite apart from any order of the court, it is a very serious contempt of court to take reprisals after the event against someone who has given evidence in court.

 

I do not want anyone to be left in any doubt as to the very serious view that the court takes of such behaviour. In appropriate cases immediate custodial sentences may be appropriate. And deterrent sentences may be justified. The court must do what it can to protect the proper administration of justice and to ensure that those taking part in the court process can do so without fear.

 

 

 

The Court have not sentenced Mr Newman yet, and it is worth noting that one of the alleged breaches – that he put a mobile phone in his son’s bag was dismissed.

 

I deal first with ground (i), the alleged breach of paragraph 1 of the order of 16 May 2014. This, it will be recalled, forbad Mr Newman from “taking any steps to ascertain the whereabouts of [X] and/or foster placement, including using [his] mobile phone or laptop GPS positioning systems.”

 

The evidence in support of the allegation of breach was two-fold. First, there was evidence from one of the social workers who had supervised contact between Mr Newman and his son on 5 August 2014 that, following this contact, a mobile phone of unknown ownership was found in the bottom of X’s changing bag. Second, there was evidence that, when a key on the phone was touched, it began intermittently sounding what was described as a siren alarm tone and the front screen of the phone displayed the following text:

 

“! Help ! I lost my device! Can you please help me get it back? You can reach me at 000000 newman1985@hotmail.co.uk Blow me fucker, give me my son back”.

 

That is the extent of the factual evidence, though in his affidavit the local authority’s team manager says that “This action could be considered as an attempt to locate X or to intimidate his prospective adopters, carers or involved Children’s Services staff.” Be that as it may, the relevant allegation in relation to this incident is not of intimidation, only of breach of paragraph 1 of the order of 16 May 2014.

 

There was a clear prima face case that Mr Newman had deliberately placed the mobile phone in X’s changing bag, but despite hearing what Mr Jenkins had to say, I remained unpersuaded that there was even a prima facie case against Mr Newman that his actions had, within the meaning of paragraph 1 of the order of 16 May 2014, involved him “taking steps to ascertain the whereabouts of” either X or the foster placement. It was hardly to be imagined that the only people likely to pick up the phone – either a social worker or foster carer – would be so obliging as to contact Mr Newman and volunteer the information. And if the concern, as indeed the order itself would suggest, was that Mr Newman was using the phone itself in such a way (eg as a tracking device) as to reveal the relevant location, then that is not something, in my judgment, that could properly be inferred in the absence of evidence – and there was none – demonstrating how the phone could be used in that way. Absent such evidence there was, in my judgment, not even a prima facie case against Mr Newman.

 

Little boxes and the ark of the covenant

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

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

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

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

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

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

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

Well, people have clearly worked very hard on it.

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

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

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

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

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

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

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

 

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

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

Consultation ends 26th March.

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

 

Violence against social workers

 

This is a curious little article in Community Care, based on a national survey done of social work/social care staff around the country. It covers an important topic of the violence that workers in social care encounter during their work.

It gives a useful colour coded map, in which one can use sliders to look at the number of the  incidents of violence against social work / social care staff over the last four years.

The grey areas show that none of those surveyed in that area reported any incidents of violence, and then the colours go from yellow, dark yellow, orange through to reds and dark reds. Each colour represents around 150 incidents, and you can click on any individual area to see the total number of reports.

 

http://www.communitycare.co.uk/violence-against-social-care-staff-2013/

 

Given what social care professionals have to do in their work, I am slightly surprised that it is not higher – not that I am condoning any of these incidents far from it, but there’s a context of having to make very challenging and emotionally charged decisions and interventions in people’s lives.  When you consider the number of people employed in social care and the number of interactions that each of them has with people very single day, even the high end is just a tiny tiny proportion of those interactions. That obviously doesn’t lessen the unpleasantness of any single one.

 In nearly 20 years of doing a pretty challenging job in legal, I’ve had one person take a bad swing at me and miss, one throw a table over in court, one massive steroid-assisted bloke with pecs like halved watermelons inform me that if I didn’t get out of his way he would “destroy me”, a delightful chap walk behind me in a corridor at Court and tell me that “If I had a knife in my pocket right now, I could stick it right in your kidneys”.  

I can understand the context of why all of those people felt that way about the horrible mess I was making of their lives, but it didn’t stop any of it being very very unpleasant to experience and I remember all of them pretty vividly. And I didn’t actually get struck in any of them.

So all of what follows is absolutely with the understanding that violence in the workplace is a really horrible and potentially traumatising event and that it can’t be acceptable.

Caveats over.

All of the gray areas are presumably no reported incidents at all, and that probably represents around a third of the map. The majority of what is left is somewhere between 1 and 300 incidents per year.

 But what I found rather intriguing was that there were bands or geographical pockets of the higher end, the orange and red areas that seem to be around 500-1000 reported incidents per year.  And some of these cropped up over and over. And they weren’t necessarily the ones that a lazy stereotype might pick out.

 

The ones for 2012 show  those hotspots as being :-

 

The very North of England – Durham, Cumbria, Northumberland (hold off on your stereotypes for a moment), Leeds, Sheffield and Nottingham (leave those stereotypes) and the South East of England, particularly West Sussex.  People working around Worthing and Bognor were much more likely to experience violence than those around Liverpool, Manchester, Birmingham, inner-city London in 2012.

 

2011 shows North of England, Leeds, a teardrop shape around Sheffield and Nottingham, bits of London and again West Sussex.

 

2010 show North East of England, the Sheffield/Nottingham teardrop again, bits of London and again West Sussex.

 

2009 – no red or orange in north of England, or Sheffield/Nottingham, or London. Norfolk is bad, Dorset is bad, and yet again, West Sussex is bad.

 

Of course, the number of incidents doesn’t tell anything about the seriousness of them. Perhaps the red/orange authorities are more rigorous about reporting and logging incidents that some of the other areas brush off and don’t record.  

 

Maybe not, maybe West Sussex workers should be asking for some danger money.

 Another portion on the Community Care story on this shows an infographic illustrating the violence inflicted on such workers – the larger the word, the more frequently it came up in the survey

 http://www.communitycare.co.uk/blogs/social-work-blog/files/2013/08/Violence-Wordle-1200×900.jpg

 The heading being “knife throwing” and the sub-heading being “workers tell us what they have been attacked with”

 Then you look at the visual image and wince.

 When you first look at this, just as I did, the words that leap out at you are Chair, Knife, Thrown, Knives, Hammer, Face, Head,  Needle, Glass, Hit, Heavy, Objects Threatened.  

 Again, without wanting to trivialise this – nobody ought to be physically threatened or harmed when they are doing their job, even in the context of the very emotive nature of the job; when you look a bit closer at the infographic, you see words like

 

Etc, various, manager, parent, ready , another, support, number

 

Albeit much smaller. So clearly the graphic is not showing “things that workers have been attacked with” and how frequently such objects were used, but rather the frequency with which certain WORDS were used in the description of events.

 Unless it is that social care staff in West Sussex are being hit by another manager for not being ready.

 It is an important and serious issue, and for any worker who has gone out to do a difficult job and in the course of a day was threatened or hit with a stick, or a snooker cue, or a knife, that’s absolutely unacceptable and dreadful. I just think one needs to be careful about juxtaposing information like 712 incidents of violence in 2012 in Northumberland with a graphic highlighting the very most serious of such events.

 Nonetheless, I think it is an important issue;  to look at why these things happen and how they can be reduced and why there are such regional disparities; and I applaud Community Care for highlighting the issue and bringing it to life.

Doncaster, so much to answer for *

The report into the failings of Doncaster Children’s Services has been lodged and Michael Gove has announced that he accepts the recommendations to take responsibility for child protection away from Doncaster Council and give it to a new arms-length trust.

 The report is here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212598/Ways_forward_for_children_s_services_in_Doncaster.pdf 

 There’s a good news article on the story at Community Care here

 http://www.communitycare.co.uk/articles/16/07/2013/119339/doncaster-children39s-services-outsourced-for-five-years-after-damning.htm

 

 The report then…to say it is damning is a wincing understatement. You really, really don’t want, when you are on special measures and have been regularly monstered by Ofsted, to have the independent review say things like this :-

 

“There is little hard evidence showing any improvement in the performance and outcomes of children’s social care services between the publication of the Ofsted Report in November 2012 and the beginning of this Panel’s work in April 2013.”

or this

 

“But, perhaps more importantly, our judgments, and the recommendations based on them, are derived from the history of Doncaster children’s services. As we have seen, there have been many attempts to tackle the problems within the service, mostly involving changes of senior management similar to those currently under way, all of which have promised much, but have delivered little. If the lack of leadership or appropriate senior management was the problem, then we might expect the difficulties associated with Doncaster children’s services to have already been resolved. But despite numerous new leaders, significant additional resources and the many commitments to improve made by the Council’s decision makers, the problems remain. Fundamentally the problem seems to be one of culture: there is a culture of failure and disillusion that pervades the service and that serves to obstruct every attempt at reform”

 

I’m not going to comment on whether the review is a fair one or not, I simply don’t know enough either way. Nor do I have any axe to grind, I don’t know anyone at Doncaster to say that they are good or bad.  I feel sorry for the individuals working there, and of course the families that are working with the department.

 

Nor is it abundantly plain to me that simply detaching the service from the control of the Council and giving it a new name will fix these problems. There’s a horrible cycle you can get in when you are at a Council with a bad reputation for child protection – your best social workers leave, the ones you are interviewing for new posts aren’t really that keen on joining up, and the ones who stay can feel ground down and disillusioned. I imagine that Doncaster, for the last few years, hasn’t been a fun place to work, and I would hate people to go away with the depression that its workers are no good. I think there’s far, far more to it than that.

 

But it is a startling state of affairs that as a result of this report and Michael Gove’s response to it, that child protection services in Doncaster will no longer be run by local government but to an outsourced independent trust, and that this will be for the next ten years  – there’s a review after five years to see whether Doncaster Council should get it back  (but I can’t see how, given that they will no longer have any managers or staff in the interim, they can demonstrate that they are in better shape in five years then they are now)

 

I was going to say that it was a unique state of affairs, but I suspect that this may not be the case for that much longer. It is unique today, it may not be a unique solution this time next year.  [There’s a very large city in England that has had a spate of child deaths and serious case reviews and has gone through Directors of Children’s Services and poor Ofsted reports, for example]

 

This is also a clear indication that all of the sabre-rattling about adoptions and councils who don’t hit the Government aspirations about pace of adoption and approval of adopters IS going somewhere. There’s a lot of sabre-rattling, but there’s definitely a sabre in there.

 

Doncaster was of course famously one of the first Local Authorities to take the view that it was okay to have a Director of Social Services who had never done any social work, or managed a social worker or knew anything about social work, or indeed local government work, or education work, or work involving children. The background in question being managing a frozen food company. That was back in 2004, that person leaving in 2007.

 

“Management skills are management skills” was the mantra, and a belief that those core transferrable skills of managing were more important than knowing anything about the service that’s being managed.

 

Perhaps it turns out that this is true when you’re dealing with groceries – there’s not much difference managing Asda and Tescos, but maybe you can’t simply move from frozen Mini-Kievs to Social Workers.   In defence of that Director, the report suggests that there hasn’t been a turnaround since various changes in the head of the service.

 

 

How is the shift from local government to the trust going to work?

 

Well, the new service will start in April next year.  It won’t be controlled by Doncaster Council, just funded by it, and the Director of Hackney’s social services department will be the “commissioner of Children’s services” for the new trust ( one might think he would already be pretty busy running Hackney).

 

The start-up costs and funding aren’t clear, and nor is it clear what will happen to all the existing staff and management. Ordinarily, if a Local Authority tendered out its services, TUPE would bite on existing staff and they would either transfer across on protected pay and conditions or be made redundant. You’d need to be an employment lawyer to have any idea what happens when it isn’t a tendering out, but a ripping out of the service by central government.  My best guess is that TUPE still bites.

 

Or indeed what happens to the £1.8 million contract Doncaster Council had just entered into with IMPOWER to provide some key children’s services functions.

 

What happens if the new trust overspends its budget? Can they come to Doncaster Council and ask for more resources? Who will SET the budget? Will it be set by Gove, with a figure for how much it will alter each year? What happens if/when Gove is not the responsible minister for setting that budget? Or is the budget set by Doncaster Council? And if so, can they make cuts if they are under budgetary pressure elsewhere?

 

Who is responsible if someone sues for negligence? Does Doncaster’s Monitoring Officer have any sway over the trust? Does the Local Government Ombudsman?

 

The report suggests that the trust should be owned by its staff. Well, that works brilliantly with a Mini-Chicken-Kiev factory, since the staff can share in the profits that are made; but the trust won’t be making any profits (or will it?) and thus why the hell would anyone working for children’s services in Doncaster through the trust want to part-own it? What’s the up-side for having shares in it?

 

 

And on a wider political basis of accountability, how comfortable do we feel with the idea that central government can take control of local services away from a democratically elected local council? This is thrown into even sharper focus when one realises that Michael Gove is obviously true blue Tory and Doncaster Council is firmly Labour.

 

[Doncaster’s problems with central government over this issue do massively predate the coalition government, to be fair, Labour were giving them a hard time too]

 

If the people of Doncaster think that that their council is not much cop at running children’s services, isn’t that really a matter for them and their ballot box?

 

Obviously something had to be done, if Doncaster was under such scrutiny for so many years and independent reviews kept finding the same problems. The Government can’t just keep saying  “If you don’t get better, something bad will happen to you” , eventually something bad has to happen. This is the equivalent of “If you don’t look after your toys, I’ll take them off you”

 

But somebody still has to look after those toys.

 

 

[* Yes, I know the Smiths song is “Manchester, so much to answer for” but if you can find a pop culture reference to Doncaster, let me know.  “Don-caster spell on you” is a bit tenuous, even for me]

Voice of the child in pre-proceedings work

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

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

 

This bit is interesting

 

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

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

 

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

 

 

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

 

Systemic factors include:

 

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

assessment but equally failure of courts to recognise good social work

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

 

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

unplanned/emergency basis;

 

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

 

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

professionals.

 

 

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

 

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

 

 

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

 

The FCA’s Independence: was it in question?

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

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

case was then allocated to another FCA as described above.

 

 

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

 

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

 

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

 

 

 

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

 

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

“Tales of the Un-experted” (sorry)

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

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

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

 

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

 

 

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

 

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

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

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

 

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