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A tale of two Telegraphs

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

Divided we stand

 

The High Court have just reached a determination in a case involving seven children – Re S  (Children : Care proceedings) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/2.html

 

Part of the circumstances in this case were that the parents, who had seven children, had a difficult relationship with one of the children, RD.  They felt that RD had not bonded with them, that he did not get on with his siblings and would take their toys and steal their food. The parents came up with an exceedingly unusual solution to this. The father and RD spent all of their time in one room, and slept there, and the mother and the other six children spent all of their time in another room. There was a barrier that stopped RD moving between the rooms.

 

  • The following is based largely on the evidence of Mr and Mrs S themselves. Both Mr and Mrs S told me that when RD was returned to their care, as a toddler, from foster care where he had been from 3 days after he was born Mrs S found it hard to bond with him and both parents said that he seemed to reject them and his siblings. According to Mr and Mrs S RD annoyed his brothers and sisters by taking their toys and taking food from their plates. They felt that he did not fit into the family. More than that they felt he was not like their other children. As a result they decided to live as a divided family with Mrs S and the six other children occupying one room downstairs and Mr S and RD occupying the other. RD was, on their own evidence, largely confined to that room with a gate placed across the doorway. Mr S ate his meals in this front room off a plate which RD shared. Mr S and RD slept in this room while the other children and their mother all slept in one room upstairs.

 

 

 

  • Mr and Mrs S both gave evidence that RD would scream and cry for hours at a time. Mrs S emphasised that RD was screaming not just crying and that it was not like her other children. It is their case that they were worried that he was developmentally delayed and that he had something organically wrong with him. They were so concerned that his crying would cause the neighbours or a passer-by to complain particularly at night that they took him to see their GP, in Burnley, and then to a specialist.

 

 

 

  • There was, apparently, no diagnosis but a recommendation that they change his diet in case he was lactose-intolerant. RD continued to have periods of screaming during which he must have been very distressed. Mr S described him as disaffected, disruptive and violent to the other children; he said RD’s behaviour was classic attention seeking and that he would not bond with the other children. His speech was delayed and he was referred to a speech therapist. Both Mr and Mrs S say they do not blame RD but both saw the faults as lying with him and not with them. RD is put forward by his parents as the cause of what happened next which led to social services intervention. At the time he had been back living with his family for more than two years. He was just four years old.

 

 

 

  • Mr and Mrs S disagreed about what should be done; Mrs S was concerned that if social services became involved the children would once more be taken into care. Mr S says he wanted to ask for help. The family had become more dysfunctional and there existed a kind of apartheid within the home

 

 

That reminded me, although it must have been utterly ghastly for everyone involved, of the classic episode of Steptoe and Son.  Harold falls out with his “dirty old man” father, Albert, and decides that if they are going to carry on living together, they will have to divide the house in half – Harold builds a Berlin Wall style contraption, including a turnstile for access to the bathroom. They only have one television, so there is a hole cut in the wall between the two living rooms, with half of the screen on each side. Harold has devised a very far division of viewing hours, which Albert does not adhere to when Harold wants to watch the ballet.

 

Leading to this classic exchange

Harold : I have the law of contract on my side

Albert : I have the knobs on my side…

 

It’s a long clip, but every minute is worth it.

 

It appears that in this case, the father was convinced that what lay behind the proceedings was that he had (aged 48) married the mother on her sixteenth birthday, and that the Local Authority hoped to break them up so that mother would make complaints to the police about what might have happened BEFORE her 16th birthday.

The case has a lengthy history, but I am concerned principally with the period between the judgement of Mr Justice Hedley in 2011 and now April 2014. Mr S and Mrs S, who appear in person and present as a united front, believe that their family has attracted some notoriety and that what has happened in the past particularly prior to their marriage has prejudiced the authorities against them, leading to these proceedings. I make clear from the outset that the circumstances surrounding the marriage do not form part of this trial and I am not concerned with them. Mr and Mrs S have been married for 14 years and it is the circumstances leading to their seven children being taken into the care of the local authority in the autumn of 2013 and the welfare of the children at that time, and now, with which I am concerned and whether the children have suffered or are likely to suffer significant harm attributable to their parents’ care or lack of it.

 

and later

Mr and Mrs S have put an extraordinary case before the court which is that there is a conspiracy to implicate Mr S in charges of child abuse and that in order to do so E will be persuaded to make such allegations about her father. It is simply not a credible case and there is no evidence to support it. Moreover such a scenario is largely centred on Mr S and his own obsessions. To suggest that his daughter would become involved in such a conspiracy begs more questions than it answers; particularly regarding his attitude towards his own child, her well-being and the difficulties that she is encountering as a result of these proceedings and her father’s allegations about her lying. When coupled with his evidence that RD’s behaviour and difficulties at home were to be laid at the child’s door and not at that of his parents, Mr S’s inability to even start to accept his own responsibilities as a parent are starkly illustrated

Ignoring the circumstances of the parents marriage there were plenty of threshold concerns in the case

 

 

  • LCC seek finding that the physical well-being of the children was compromised by their living conditions both in Burnley and in Blackpool. It is the local authority’s case that the pictures taken of the two homes which both parents accepted in their oral evidence as unfit for the children to live in could not have deteriorated to that extent in the short time between the children being taken into care and when the pictures were taken. The pictures show rooms that are so covered in clutter that they are either unusable or virtually uninhabitable. I make two observations at this point that the description of rooms above mirrors that of Hedley J in 2011 where he spoke of “endless clutter making the rooms almost uninhabitable”, and secondly, that Mr and Mrs S accept that the house in Blackpool was in no better state on the 31st March 2014 despite the fact that they were shortly to come to court and ask for the children to be returned to their care in that house. It was foreshadowed in the evidence of the health visitor, to which I referred above, and upon which they relied.

 

 

 

  • The outside of the properties were no better. In Blackpool there was a sea of bags, black bin bags, detritus and other objects which meant that the children could not go outside to play. There was glass on the ground of the side alley which allowed access and egress to the house at the time the children were removed which was still there months later. The front door in Blackpool was entirely inaccessible from inside the house. I find that the physical surrounding in which the children lived would have caused them significant harm by removing any opportunity to play outside and by limiting even further the space in which they could live, study, play and interact. As they lived their lives in these two houses and did not have the opportunity to be educated elsewhere this has caused them significant harm in terms of their education, as well as emotional harm by severely restricting their ability to become socialised and learn how to function in the wider community. The physical effects on JL are visible in his awkward gait and difficulties in running around; something any little boy, who can, should be able to do freely and with ease.

 

 

 

  • I find there is evidence of significant physical neglect and harm to the children including of their personal hygiene; the older children do not know how to keep themselves intimately clean; the youngest ones were not toilet-trained. Both of these neglected aspects of the children’s physical health were largely accepted by Mrs S in her evidence. JL had some difficulties with his mobility. E and AS showed signs of neglect to their teeth and dental health. AS’s ophthalmic needs were ignored. None of this was caused by anything other than the parents’ care and is directly attributable to them.

 

 

 

  • The very significant harm to RD caused by his neglect and isolation within the family is obvious from the evidence of his parents and siblings and from the descriptions of his behaviour and improvement in his behaviour and development since he was placed with foster-carers. The depth of the emotional harm he has suffered may not become apparent until he is older, but it would be facile to suggest anything other than that he must have suffered significant emotional harm based on the evidence of his parents alone. He was seen as the problem and he and the other children must have known it; indeed the older children have said so. The emotional harm that this has caused his siblings is significant. The oldest three have expressed guilt and remorse at the way he was treated; they should not have been put in that position.

 

 

 

  • The lack of emotional engagement and the unpredictable behaviour of their father, of whom they were scared and frightened; which in turn caused them to feel insecure has caused significant emotional harm. The almost total lack of consistent boundaries added to their feelings of insecurity. The local authority does not seek findings of physical abuse as such but say they can prove that there was a harsh and frightening environment. I find that there was such an environment which caused significant emotional harm to each of the children.
  • I find that it is more likely than not that the children were physically chastised but I cannot make findings as to the extent and nature of the chastisement. I find that the unpredictability of their father’s behaviour towards them which, more likely than not included some physical chastisement caused significant emotional harm.
  •  
  • The emotional harm suffered by the children along with the social isolation and cramped, cluttered and restricting conditions of the homes must have combined to detrimentally affect their emotional and social development and I find it more likely than not that they have suffered significant and long lasting harm as a result of the care of their parents. It is hoped that the younger children will be able to recover and catch up more readily in education (as can be seen with JK), and in their emotional and social development but the outcome of their upbringing for them all will be evident for years to come.

 

 

 

 

 

 

Sharing information between care and criminal proceedings

 

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

http://www.cps.gov.uk/publications/docs/third_party_protocol_2013.pdf

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

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

 

Police to care proceedings

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

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

 

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

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

 

Care proceedings to police

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

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

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

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

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

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

 

Linked directions hearings

 

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

 

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

 

“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.

Devon knows how they make it so… necessary

 

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

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

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

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

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

Getting the best out of your solicitor

Some general advice and suggestions for making good use of a solicitor in a case involving children.

For most people, the only time they see a solicitor is when they are buying a house, or when something has gone badly wrong for them. So it is not surprising that if you have to go and see a solicitor about your child, you don’t know what to expect.

If you don’t see them in real life, the other place is TV and in films.

The only solicitors we see on television tend to be on crime shows where their role is limited to either (a) being quiet and nodding  or (b) saying  “Stephen, you don’t have to answer that Stephen!” just as Stephen confesses all, two minutes before the final credits.  Or those personal injury lawyers, walking along a street in crisp white blouses looking all stern and ready to kick someone’s ass on your behalf if you fell off a stepladder.

They are either nodding dogs, or rottweilers with lipgloss…

So, when you go to see a family lawyer, you will find that they won’t be like either of those things. They aren’t quiet nodders, and they aren’t rottweilers with lipgloss (well, not always)

[Three quick definitions of phrases we use as solicitors, to put into plain english  :- a solicitor is someone who works in law, who has a degree and has passed specialised training to become a solicitor, and a lawyer is anyone who works in law. All solicitors are lawyers, but not all lawyers are solicitors.   And then ‘instructions’ means the things that you tell the lawyer to do, or what your position is on any question that they ask you about.]

There are some things that you can really do to help yourself for that first appointment (especially important if you are paying for it yourself, since making things more efficient for them is cheaper for you)

  1. When you make the appointment, make it clear what it is about. Is it about a mother and father disagreeing about arrangements for a child, or is it about Social Services and your children?  If the reason for your appointment is that you’ve been sent some papers telling you that you have to be in Court on Thursday, make sure you tell them that, so that the person you are seeing knows that they will be going to Court with you on Thursday.
  1. Bring with you the stuff they tell you to bring. That will usually be, something with your photo on it, and something with your address on it (so they know that you are who you say you are), some recent payslips or benefit book (so that they can work out whether you qualify for free legal advice and can take copies) and any court papers you have been sent.

(I know that the temptation when you get court papers is to tear them up, or write “LIES”   all over the margins, but that really is going to make it harder for your lawyer, as they will be the copies they have to take to court and use)

  1. Have in your mind, or even written down, a short introduction – a page will do.  Who are you, who are the important other people in the case. Who are the children, how old are they, where do they live. If it is about you splitting up with someone, when did you split up?   And most importantly, what is the main reason why you have come to see the solicitor.   “Things were all going okay, I was seeing the children every weekend, until I got this new girlfriend, then my ex stopped all contact, that was four weeks ago”   or  “Social Services say that my son has got a broken arm and it wasn’t an accident and now they want to take it to Court”     that sort of thing.
  1. Be clear in your mind, and say to them, what it is that you really want to achieve.   “I want to get my contact started up again”   “I want my son to stay with me and not go into care”
  1. You may also want to have in your mind a Plan B – if it is not possible to get what you really want, what is the next best thing?  Having a Plan B doesn’t mean that your solicitor will give up on your main thing and go straight for that, it just means that it is better to be prepared in case your main aim is not something you can achieve straight away.
  1. Everything you say to your lawyer is secret. They won’t tell anyone else, so you can tell them the truth. The one qualification to that is that if you tell them that you have lied, and ask them to keep on with that lie for you, they won’t be able to do that. So you would have to then decide whether to get new solicitors, or whether to change your instructions to them so that you aren’t asking them to lie to the Court.

[You might be a bit surprised about that – I know that for most people, lawyers and lies go together like wasps and strawberry jam, but actually, there are really strict rules about it. A lawyer can’t ever lie to the Court or mislead the Court.  They can legitimately do their best to put you in the best possible light, and to take any criticisms that other people are making about you and defend you against them, but they can’t say that you did X or Y, or didn’t do X or Y, if you have told them different.   The rule is that they can make you look good, or less bad, but they can’t lie for you]

  1. Your lawyer is going to have the best chance of being able to achieve what you want if there are no surprises in store for them. It is no fun preparing a case for Mother Theresa, only to get to Court and find that the other side have lots of evidence that you drink like a fish and were in prison for punching policemen in the face.  Best to know that sort of thing up front, so the lawyer can deal with it and plan for it.
  1. Give the lawyer the best way to get in touch with you – whether that is mobile, email, or by letter. If there are specific problems (you can send me a text, but I never check my voicemail) then let them know.  If you change your mobile number or your address, let them know.
  1. If during the meeting, or afterwards, you feel like you don’t understand something, just ask.  You have come into a world that is strange, that has weird language, weird customs and everything is new to you. It really is fine to say “Hang on a second, I’m not sure I get what a CAFCASS officer is, can you explain it again?”
  1.  At the end of the meeting, make sure you know what is going to happen next. Are they asking for you to do anything? If so, what is it, and when should you do it? Or are they doing something for you, in which case what is it, and when would they need to talk to you or see you again?

Going to Court

  1. Make sure you know where the Court is, and what time you’ve got to be there. You usually want to be in Court forty minutes or so before the hearing is due to start.  Be aware that like a doctors surgery, everyone is told to be there at ten or two, so you might not be the first case to be heard and there might be waiting around.
  1. Get to Court on time.  Take the papers with you, and when you book in, say which case you are there about and who your solicitor is.  If you can’t make it or you are late, ring your lawyer to let them know.  They may have booked someone else – a barrister to come to court and speak to the court on your behalf. They will know the background to your case and they will probably have some additional things they want to talk to you about.
  1. Probably not a good idea to talk to anyone else who is on the case or sit near them, just find a spot on your own until your lawyer finds you.
  1. As tempting as it is to go up to the social worker / your ex and shout “Happy now are you?”  or similar stuff,  you should really avoid it.
  1. When you go into Court, sit on the row directly behind your lawyer. It is Court manners to all stand when the Judge/Magistrates come in, and go out.  (Usually there will be someone official who says “All stand”).  Even if you are a rebel-without-a-cause  “nobody tells me what to do” sort of person, just stand up, it really isn’t worth causing a fuss over.
  1. Ideally in the Court hearing, unless you are giving evidence, the only person you should speak to is your lawyer, which you will do very quietly. Don’t interrupt or shout out when other people are talking, and don’t sit there whilst other people are talking saying “well, that’s lies” and so on. If someone does say something that is wrong, or a lie, or a mistake, gently get your lawyers attention and let them know what you have to say about this.
  2.  Storming out of the Court room, slamming the door never looks good. If you need to leave the room, just quietly say to your lawyer that you have to go outside for a bit, and why. And when you come back in, don’t make a big fuss, just come and sit down behind your lawyer.
  3. After the hearing, make sure you understand what happens next, what anyone expects you to do, and if the case is coming back to court on another day, that you know when that day is.

Giving evidence

  1. If you think you are going to have to give evidence, ask your lawyer beforehand how that works – where you stand, how to speak and so on. Your lawyer can’t tell you how to answer certain questions (that’s called ‘coaching’ and is banned) but they can give you tips on how to give your evidence and how to keep calm if you find yourself getting confused or upset or angry.
  1. You will give evidence from the witness box. The first thing you will have to do is give a promise to tell the truth, and that promise is written down on a sheet of card for you to read out. You can swear on the bible, or other holy book, or you can ‘affirm’  which means reading the promise out without having your hand on a holy book, if you aren’t religious.
  1.  The top tips in giving evidence are that everyone in the room is trying to write down what you say, so speak a bit louder and a bit slower than you normally would,  don’t take anything personally, and it is not a quiz show where you have to answer immediately so if you want to take a few seconds to think about your answer that is fine.

Hopefully, and this is the idea of the whole thing, you will find a lawyer who listens to what you have to say, gives you good advice and who you feel you can trust and who is doing the best job they can for you.

If you don’t, you need to try to sort this out. Not by simply not communicating with them, or by ringing them up and shouting, but by saying “The other day when X happened, I don’t think you really did what I wanted. Can you explain why that happened?”

If you can’t resolve it by talking through your problem, then you may want to get another lawyer, maybe someone at the same firm, maybe a different one, and you should be able to get guidance on how that works.

But if you don’t talk to your lawyer, especially about any big changes in your life or your case, or about your worries or doubts, they won’t be able to help you, and that is what they are there for.

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