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Smokey and the Bandit – “boy adopted due to smoky house”

 

This story appeared in the Guardian yesterday.  Two year old boy from smoky house to be placed for adoption.

http://www.theguardian.com/uk-news/2015/jun/01/two-year-old-boy-adoption-cigarette-smoke

 

It relates to a case decided by a Circuit Judge (in Hull)- so the case is not binding authority for later cases*, but it is still of public interest.  (* the reason it is not binding is because it was decided by a Circuit Judge, not because it was decided in Hull)

Re AB 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B58.html

 

The author of the Guardian story had clearly read the judgment, and read it carefully, because it draws out all of the many, many references to the smoky atmostphere in the house being a concern. This is a continuing theme throughout the judgment.

  the most graphic testimony came from health visitor Julie Allen, who told the judge that the family’s living room was “so smoke entrenched that I had difficulty breathing”.

“On entering the living room Allen described being able to see a visible cloud of smoke surrounding the father and [the boy],” said the judge. “[The boy] was asleep on the sofa and had been unwell for some time by this point.

“Ms Allen described the room as ‘so smoke-entrenched that I had difficulty breathing’. She immediately expressed concern to the parents as to the impact of such smoke on [the boy], who had already been prescribed an inhaler within the previous month to help his breathing.

 

That’s obviously the public interest debate, because it raises a spectre that a parent doing something lawful (smoking) can find themselves in care proceedings, and could ultimately find the child being adopted. If that was right, it would obviously worry people, and be thin end of the wedge material.

Remember that in establishing threshold, one has to not only show that X event happened and that the child suffered significant harm as a result (or is likely to) but that X is a type of behaviour that one wouldn’t expect from a reasonable parent or care that it would not be reasonable to expect a parent to provide for him.

 

Of course, reasonable is always a difficult concept. It ties into the Illusory Superiority concept – just as everyone considers that they are above average (in terms of intelligence, sense of humour, looks, driving ability), everyone considers that THEY are reasonable, and they assess other people’s behaviour as reasonable or unreasonable based on their own standards.

A non-smoker, or anti-smoker might hold that no reasonable parent would smoke within the same building as their child. Someone who smokes twenty a day might hold that a reasonable parent would smoke, but try not to blow smoke into the child’s face.  Someone else might think that a reasonable parent would try to smoke in a different room to the child, and so on.  What consitutes reasonable parenting is a really subjective issue.  (And it may well be part of the problem of care proceedings, since a social worker assessing reasonable parenting does so from the mindset of  (a) someone who was concerned enough about children to go into a profession aimed at safeguarding their welfare (b) has a degree and (c) is working in a culture where protection of children is the paramount concern)

I personally would prefer that a parent smoked outside, but I wouldn’t consider it unreasonable if they decided to smoke in their own home, or to give up entirely and insist that no visitors to their home smoked whilst there. I have a pretty broad spectrum of what is reasonable in terms of smoking near children. I know others who would have a much narrower band of what’s okay and what is unreasonable.

 

{My experience may be coloured by the fact that (a) I was able as a child to go to my ice cream van and buy cigarettes for my grandmother, something you can’t imagine today and that (b) when I was about twelve, our sweet shop sold a product called Skoal Bandits – sachets of tobacco that you would put in your mouth and suck, till they were banned  – I see that you can still buy them in America and other places and I suppose (c) that I began my childhood smoking on cigars, so I never ended up becoming a regular smoker}

 

"Smokey and the Bandit Two - Smokey IS the Bandit!"

“Smokey and the Bandit Two – Smokey IS the Bandit!”

When looking at smoking, and a smoky atmosphere, I would argue that it would need to be a very very high level of smoking to amount to threshold – since smoking, even heavy smoking in your own home is a type of behaviour that some parents would think was abhorrent and some would think was normal. It would be hard, I think,  to categorise even a sixty-a-day habit as behaviour that would amount to threshold.   (There might be exceptions – for example, if your child has a lung disease and has to breathe with the assistance of an oxygen tank, or suffers with life-threatening asthma attacks then a reasonable parent would take steps to prevent him being exposed to smoke)

 

So if the smoky house was the sole, or main reason for the decision, the decision would be very questionable and probably wrong.  We need to see if that WAS the sole, or main reason.

 

The Guardian piece does say several times that smoking was one of a number of concerns, and touches on some of the others during the article.

To provide some of that context, the Judge sets them all out as bullet points

  • potential drug paraphernalia observed at the parents property on 2 occasions
  • Mother failing to engage with DVAP and the freedom programme
  • the lack of involvement of the father in AB’s care
  • outstanding therapy for the father
  • concerns re the father’s mental health
  • parents responding aggressively/defensively to challenge
  • a decline in the parents engagement with agencies whose role was to support them in their care of AB
  • the amount of smoke in the home of the parents and AB
  • risks within the household including objects left in AB’s reach and electric wires being within his reach
  • dirty, smelly and unhygienic home conditions
  • the parents and AB presenting as dirty and with an unpleasant odour
  • father testing positive for cocaine in October 2014 and subsequently failing to fully engage with hair strand testing

 

So it is certainly true that the smoky atmosphere was part of the Local Authority case, but there were other matters – probably the most serious one being the use of drugs.

 

The Guardian piece doesn’t cover this much, but actually the electrical wires were put as a high concern by the Health Visitor

A further risk that Ms Allen documents is the issue of trailing wires which she described as being a strangulations risk, running across the room directly over AB’s toybox. It was put to her in cross-examination that she was perhaps exaggerating in describing this as a strangulation risk but she was very clear on this point. She showed clear frustration and exasperation as to why the parents did not address and rectify this issue, describing that it took them some 8 weeks to remove this risk. She described how they were clearly capable of addressing risks when they were identified as they had dealt with a similar concern in their previous home. She described that all it would have taken to make the wires safe was to buy some inexpensive tacks to secure the wires to the wall.

 

That’s one of those common bugbears. Yes, wires running over  over a child’s toybox have a strangulation risk, but what effort is made to quantify that risk?  Risk isn’t binary – something is either completely safe, or there’s a risk that X could happen which is not worth taking.  Human beings take risks every day. Every time they cross a road, or put food in their mouths, there’s a risk that this activity could lead to serious injury or death. But we weigh up that the risks are very very small, and the consequences of trying to lead a risk free life (by avoiding say, the risk of choking on some food, by not eating, or liquidising all your meals in a blender) are more problematic than taking a slight risk.

I’ve no doubt that seeing electrical wires dangling over a toybox doesn’t feel nice, that you’d feel much more comfortable if it was fixed and it seems a small thing to ask, but when you describe it as a strangulation risk without quantifying that the risk there is very very small, for me, it is over-stated.  For example, if I let a pet python sleep in a baby’s cot, that is a strangulation risk, and one that most people would think was more risky than overhead wires.  You lose sense of risk and risk management if you describe both the wires and the python scenarios as ‘risk of strangulation’

[It is a not unreasonable point to respond by saying ‘it would be very easy and relatively painless to remove that small risk entirely, so why not do it in this case?’ ]

 

A lot of the evidence about home conditions was contested and challenged, so the Judge had to reach conclusions.

 

  1. I find that I prefer the evidence of the health visitor, Julie Allen and the support workers, Emma green and Janine Potts in terms of their observations of the home conditions and I find that the recordings of Laura Gill provide further corroboration of these matters. I find that the home conditions were sometimes extremely dirty, unhygienic, and placed AB at risk of exposure to germs and contracting illness. I further find that he was at risk of sustaining serious injury or possible strangulation through clutter in the home and the failure to deal with unsecured wires. AB himself was exposed to these conditions and his personal care was sometimes inadequate with him being dirty and on occasions smelling of smoke. I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.
  2. I find that his weight plateaued when he returned to the care of his parents and that he dropped by one centile on the growth charts. I find that his diarrhoea and general unwellness is likely to have been impacted on by the lack of cleanliness and unhygienic home conditions. When a child is suffering as AB was and there are simultaneous concerns about his lack of weight gain, the advice of the health visitor to maintain hygienic and clean home conditions should have been prioritised.
  3. As a general observation, I find that the parents do not accept or follow advice if they do not agree with the advice (both parents disputing the strangulation risk identified by Julie Allen and the risk from cigarette smoke identified by several professionals).
  4. I also find that the parents failed to engage fully with the support services that were available and provided for them, in particular the family links programme, the safety workshops, the children’s play sessions and freedom programme for the mother. I am afraid that whilst I accept that these parents had a lot going on, these courses and programmes were important and needed to be prioritised, if the mother was to attend, the father had a responsibility to ensure that she was supported and encouraged by him in attending. Even if he was working long hours, he needed to be staying on top of the housework when he returned if the mother had been unable to attend to it during the day. This plan for AB to be cared for by his parents needed these parents to work together and support each other to ensure that AB’s needs were fully met.
  5. I find that the father struggles in managing his levels of anxiety and that sometimes this can manifest itself in him presenting as aggressive or confrontational, as recorded by the health visitor and the social worker. Whilst I am pleased that the father is now receiving some appropriative assistance with this, it is clear that this is at an early stage of what will be a long therapeutic process. I also find that as a way of managing stress the father has reverted to illicit drug use on at least one occasion and I find that this is an ongoing risk for the future. I find that the communication between the parents was extremely poor with the mother not knowing about the father’s heightened stress levels and the fact that he reports he was reducing his anti anxiety medication (I cannot understand why he would be doing that just after AB had been removed from his care) and the father not knowing that the mother was failing to attend the courses and groups that were expected of her.
  6. When considering the evidence in relation to the care that AB has received and is likely to receive, I have found it helpful to consider in some detail the documents from the care proceedings and in particular the assessments. I also find that is of real significance that the parents, having achieved their aim of a plan for AB to be placed in their care, were then unable to motivate themselves sufficiently to ensure that the home conditions were suitable for him to be placed. The standard that was needed was simply good enough, I would have thought it would not have been too much of a sacrifice for the parents to stop smoking (or at least to stop smoking in the home) and to ensure that the home was clean and tidy. In addition, I accept that the parents delay in seeking the courses that had been recommended and were to some extent part of the plan for AB to be placed in their care, demonstrates a lack of organisational skills and lack of commitment. Following the court approving a plan for AB to be cared for by his parents, I would have expected the parents’ commitment and motivation to be at its very highest.

 

The Judge had to analyse both harm, and whether the parents were able to meet the child’s needs to a ‘good enough’ standard, and if not whether they could be supported to do so.

  1. Has he suffered harm? I am afraid that I find that he has. Those changes in placement will themselves have been harmful and I think it will have been harmful to him that his return to his parents care was delayed by 4 months, a significant contributory factor to that delay was the parents’ lack of action and motivation. In addition he has been placed at real risk of injury to his health and wellbeing by his exposure to hazards in the home, lack of appropriate supervision and unsuitable and dirty living conditions. The impact on a child’s self esteem as they get older of being dirty and smelly should not be underestimated. They can be isolated from their peers and struggle to form friendships.
  2. The father still has some issues with managing his moods and with a risk of reverting to illicit drug use when he is under stress. The mother on her own, without significant support from the father cannot consistently meet AB’s needs. Dr Parsons found that and there is no evidence that this has changed since his assessment. Therefore the father’s difficulties are all the more significant. He has not been able to compensate for the mother’s own limitations and indeed some of the recent issues in relation to his mental health and anger issues and drug use actually heighten the risks. I do not accept that the issue is as simple as him now being available as he in no longer working.
  3. Are the parents capable of meeting his needs? Yes they are. At times it is clear that they are able to recognise and prioritise his needs. They have shown that they can maintain a clean and suitable home; they can show commitment to AB by attendance at contact and consistent care within contact. However, I must consider the evidence in relation to their actual care of AB when he was living with them and was due to be living with them. Sadly, I find that this fell well below the level that I would say is good enough. I really don’t know why this was.
  4. The parents are entitled to support in their parenting. Having considered the evidence of all parties I consider that the level of support offered to the parents was extremely high (indeed the mother reported the support worker visiting “every day”). Not all of the support that was available was taken up. Given the significant concerns that then arose, it is apparent that support from the LA or other services unable to redress the parents’ difficulties in meeting AB’s needs. It is hard to see what other or further services could have been offered. The level of support offered through Janine Potts visiting all day and every day is simply unsustainable in the longer term and ceases to be “support” and instead becomes substituted parenting.
  5. I think that the mother is right when she recognises that some of the problems that the couple experienced were due to immaturity. This couple needs to be able to care for themselves and maintain an appropriate home, manage their finances and address the issues in their relationship in respect of communication and The father needs to be much further on with this therapeutic work before they would be in a position to take on the care of a dependant child. In my view they still have some way to go with this.
  6. I am afraid that all of these matters lead me to an unavoidable and difficult conclusion that the risks to AB in being placed once again with his parents are far too high. The parents have given me no confidence in their written or oral evidence that they have sufficient understanding and awareness in relation to the processionals concerns to ensure that such concerns would not arise again in the future. Adoption really is the only option now available to AB, in my view, nothing else will do. I therefore refuse the parents application for discharge of the care order and make a placement order authorities n the LA to place AB for adoption.
  7. I want AB to know that in my judgement his parents loved him very much and tried very hard but due to their own difficulties and difficult backgrounds, they were simply not able to meet his needs.

 

 

This is a difficult one – it isn’t the most overwhelming case for adoption that I’ve seen, but the Judge does do what the Court of Appeal have commanded – to grapple with the issues and weigh up both sides of the argument, and the Judge makes conclusions. I don’t think that it is a judgment that is vulnerable to appeal (which is not to say that the Court of Appeal might view that differently if asked) but there are no obvious flaws in the decision making.

If the case had been solely on the basis of the smoking and smokey atmosphere, then I don’t think it would have had this result, and if it had, it would have been successfully appealed.  As part of the large number of issues, its evidential importance becomes less significant.

 

I think that there’s an argument or debate about whether too much emphasis appears in the judgment on the smoking, but looking at the analytical portion of the judgment (as opposed to the passages where the Judge is quoting what the witnesses said), I don’t think that the Judge puts particular emphasis on the smoking – it is mentioned, but not disproportionately so.

Does this bit of the findings go too far?

I find that there were numerous occasion when AB was exposed to excessive levels of smoke in the home that will have had an impact on his health and wellbeing.

 

He probably was exposed to excessive levels of smoke on the evidence. It is whether there was evidence that this exposure caused him harm, that might be more problematic. There is the evidence that the child had been prescribed an inhaler to help with his breathing a month earlier, so if the evidence before the Court was that the child had breathing difficulties, which would be causing him harm or discomfort, there could be a caustive link that the cigarette smoke, if excessive, was impacting adversely on his well being.  (In light of the President’s comments on Re A, I think that if there is to be a finding that the parents smoking caused him significant harm, the link needs to be very explicit)

Nor do I think that the report in the Guardian was misleading or distorted – its a very good summary of the case and certainly when you read the judgment, it is possible to see it being largely about smoking, too much so on first reading.  It was only when I read the analytical sections with close inspection that the case became more balanced than first appeared.

 

It is also worth noting that the Judge was critical of the Local Authority – when this case was first listed for final hearing,  it was only really in the mother’s evidence, that it became apparent that there were pfoessionals who had been frequently visiting the home for whom the Court had no records and no statements.The records were produced the next day. .  The parents wanted time to prepare their case and also wanted these witnesses to be called. In the event, those witnesses turned out to be key witnesses. The adjournment had to be granted. The Judge criticised the Local Authority for not having addressed their mind to the case that they were trying to prove and that these witnesses should have had statements prepared and served much earlier.

It was a shame that the Guardian (and the other advocates) had not grasped the significance that there was valuable evidence in the knowledge of potential witnesses who had not been called.  This case highlights that Guardians now very rarely read the primary evidence – the social work files and records, and are urged by CAFCASS not to do so – on the basis of ‘proportionate working’   (I’d sarcastically comment that where the order sought or contemplated is one that leads to adoption, that it would be proportionate for the independent representative of the child to look at the files, but that would be beneath me)

 

25. I queried whether the Guardian had considered the LA records and seen the significant involvement of these other workers. I was told that the guidance from Cafcass, in line with proportionate working, is that LA files will only be inspected if it is necessary. Sadly, in this case I think it was. I also made it clear to the LA that in my view the Presidents guidance, whilst helpfully sending out a clear message, is not new law. It is always for the LA to prove its case and it must do so on the best evidence available. It is unfortunate that no-one within the LA took a step back to assess what case it was trying to prove and what evidence there was to support such a case and then what witnesses could give that evidence. For example, a large plank of the LA case is that the home conditions were frequently dirty and cluttered and that the home was very smoky and smelly. Ms Tomblin had only visited on one occasion prior to AB’s removal and what she observed on that date whilst raising some issues, was not the picture that had been recorded by others of a home situation that was unsafe and unsuitable. Thought should have been given to what evidence she would actually be able to assist the court with and whether there were others who were able to give more direct evidence of the matters that the LA was seeking to prove.

  1. This became even more stark when I was told at the resumed hearing of this matter that the LA had actually obtained a statement from Emma Green who was heavily involved with the family at the relevant time and who’s evidence was highly relevant, but for some inexplicable reason this had not formed part of the bundle, nor had it been served on the other parties.
  2. I reminded all of the representatives, that I saw a collective responsibility between them to consider the evidence that it was proposed the court would be asked to consider and whether further evidence was needed, whether to support a party’s case or to enable an effective challenge and to alert the Judge to the fact that there may be evidential difficulties. Applications can be made on short notice and consideration could have been given to whether further witness evidence was necessary. It is disappointing that the parties have held a number of advocates meeting and as I have already said, the case has been listed for final hearing previously, yet these matters have never been raised. Nevertheless, the parents’ right to a fair trial undoubtedly required them to have the opportunity to see direct evidence and to have the ability to challenge such evidence. Inevitably therefore a further adjournment was necessary. I was also concerned that there should be no abuse of process and that the matter needed to be heard as soon as possible and therefore directed that the final hearing would be adjourned to commence afresh. I directed that the LA file evidence from those professionals who had been involved with the family during the rehabilitation period, specifically the Family Support workers and the Health Visitor. These documents have now been filed and all parties have had the chance to consider and respond to them. The parents have filed a further statement in which they perhaps go a little further in acknowledging some of the concerns.

 

 

 

The work of Guardians in care cases

 

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

Anyway, the report is here :-

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

 

The report sets out to answer two questions

1. What work was undertaken by Guardians?

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

 

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

 

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

 

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

 

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

 

“Tales of the Un-experted” (sorry)

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

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

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

 

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

 

 

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

 

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

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

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

 

“As a drunkard uses a lamppost…”

 

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

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

 

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

 

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

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

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

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

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

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

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

 

As the other CAFCASS stats show

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

Reversing the dilution of “homeopathic’ Guardians?

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

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

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

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

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

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

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

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

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

By first hearing

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

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

 

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

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

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

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

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

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

 

 

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

 

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

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

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

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

 

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

 

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

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

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

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

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

 

Rule 16.4 Guardians have a duty to take the initiative

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

 

The case can be found here

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

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

 

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

 

 

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

 

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

 

So, that’s the context.

 

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

 

 

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

 

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

 

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

 

 

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

 

 

There were four individual cases bundled together :-

 

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

 

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

 

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

 

 

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

 

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

 

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

 

 

 

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

 

 

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

 

 

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

 

 

 

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

 

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

 

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

 

 

 

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

 

 

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

 

 

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

 

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

 

 

 

 

 

 

 

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

 

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

 

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

 

 

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