Tag Archives: contact

Bit of a c( ) ck up on the old anger management front

Posted on March 29, 2016 by suesspiciousminds

This case, decided by Ms Justice Russell, involved a 15 year old, an 11 year old and a 4 year old, all who had become involved in a private law contact dispute between their parents.

FY v MY 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/16.html

Readers may recall that Reggie Perrin had a brother-in-law, called Jimmy. Like all characters in Reggie Perrin, Jimmy had a catch-phrase and his was “There’s been a bit of a c( ) ck-up on the old catering front” – meaning that he needed to borrow a bit of money from Reggie to tide him over. [I’ve written the letter “o” here as brackets, to stop it being devoured by over-eager spam filters]

Jimmy also had plans to build his own (fairly) secret army, which was to be opposed to just about everything, including long haired weirdos, short haired weirdos, keg bitter, namby pamby probation officers and glue sniffers – I think Jimmy might do rather well in modern politics, as it goes. I think he might acquire a significant number of followers.

“Do you think so? I thought recruitment might be difficult”

In this case, here are the reasons that the father might have needed anger management

On the 1^st February 2014 K and M went to spend time with their father at 11 am; L followed later at noon having completed his homework. At 9:30 that night L arrived at home saying that their father had hit K so L had run away. MY tried to call K’s phone, FY’s apartment and FY’s mobile phone and when the phone was answered she could hear K who was very distressed and crying. When K got home at about 10:15 pm he was clearly very distressed.
The boys told their mother that FY had taken them to a restaurant and had made reference to a solicitor’s letter; a comment or response of L’s angered their father and L tried to explain to FY that he was not taking sides, at which point FY started to swear at them and call them abusive names. When K responded FY kicked at him under the table as a result of which K sustained abrasions and marks to his legs (which were seen the next day by his doctor and the court has seen the doctor’s report). They told their mother that their father kicked at L and punched his side. They left the restaurant and both boys sat in the back of the car as K did not want to sit in the front with his father. When K tried to phone his mother and his father saw this he told K not to call and tell her what had happened, but K continued to try to make the call. FY then attempted to take the phone away from his son whilst driving the car, by reaching around the car seats grabbing at K. L tried to intervene and became caught up in the altercation and said that he had been hit on the side of his face near his eye twice, he thought by his father’s elbow. From the pictures taken after the event it is apparent that L’s face was bruised and swollen on one side (the court has seen the doctor’s report about the injuries sustained by L).
When they arrived outside their father’s apartment building, as the boys later told their mother, the struggle between K and his father continued with FY pushing K into the building leaving K with red marks to his the left hand side of his face. About five minutes later at 9:35 pm L arrived at home in a distressed state. MY immediately tried to call K on his mobile and, as he did not reply, called the land line to FY’s apartment. She says that FY answered and she could hear her son crying and asked to speak to him but FY did not allow her to and put the phone down. About 50 minutes later FY returned K to his mother’s home. K was flushed and very upset, he and L sit close to their mother with their heads on her lap, crying. Both boys did not want to see or speak to their father. They were seen and checked over by their doctor on the 4^th February, who provided their mother with a short report which sets out their injuries and confirms they are consistent with the assaults as reported. I have seen the documents and accompanying photographs.
The day after, on 2^nd February 2014, according to their mother, K and L refused to speak to or see their father. FY phoned and asked to speak to L who did not want to speak to him. At about mid-afternoon FY called again and asked to see M, and for L to go to see him as well. L told his mother that he was scared that if he did not go his father will be angry with him. FY then started to call MY’s mobile phone, the landline and the nanny, repeatedly, to demand that L and M came immediately. MY told him, on the nanny’s phone, that M was on his way but that L would not be coming as he did not want to go. FY was abusive to MY and continued to make repeated phone calls which caused distress to the boys, their mother and the nanny. FY left the country that day and did not return until the 20^th March 2014. He chose not to attend court on the 13^th March 2014; a hearing which was to listed to review the contact agreed in December 2013.
The boys have continued to be affected by the events of the 1^st February. K has spoken to the teachers at his school about what happened and, entirely appropriately the school was concerned about what he had said and the events have been noted on his school records. It is their mother’s recollection that FY did not contact the boys until about 15^th February when L spoke to him briefly but K refused to speak to him. On 19^th February FY’s sister contacted K to try get him to contact his father but K was clear in his response to his aunt that he would not do so.
On the 23^rd February there is an exchange of text messages between father and son; K said that he did not want speak to or see FY “I already know the whole truth because you are a liar and mama is not.” In his response FY, again, raised the court case and texted “Didn’t u want to live in dubai?” K responds, “I don’t want to live with you you said you will never hit me again and you did …I wanted to live in Dubai but not with you.” His father responded “I did not hit u. I love u very much and I miss you.” K texted “You kicked me which is even worse”. FY went on in his text to say that K had hit him and that he had forgiven K, to which K responded “After you kicked me, and pulled my hair and scratched my face.” FY again made reference to the court proceedings and says that he was “fighting for” K and K replies “I don’t care about you and I don’t forgive you for kicking me.” When his father responded by texting that he forgave K and changed the subject to football but K texted; “Well I don’t and because you haven’t even apologised to me.” FY texted “I am sorry baba. I love u” and K texted back; “Fine I will give you one more warning but please don’t kick me again.” FY then asked K to apologise and promise that he will never talk like that to his father again. He was insistent that K posted (on social media) “something nice about ur baba in ur status message” and despite K’s responding three times that he wanted to sleep FY kept texting him. It was well after 10 o’clock at night when all this took place.

It must therefore have been momentarily pleasing to the Judge to learn that father was engaging in anger-management work. Momentarily pleasing.

On the 26^th September 2014 FY applied for interim contact. The case was listed before me on the 3^rd October 2014 and by that time the case came FY had undertaken an anger management course with a Dr A-M in Dubai. Doubts were raised about the efficacy of this course and it is a fact, as FY told me in his oral evidence, that Dr A-M is a friend of his of many years standing and that Dr A-M is now married to a member of FY’s family.
I have not heard evidence during this hearing regarding the suitability or otherwise of the course that FY undertook but I question the wisdom of undertaking a course run by someone who a reasonable and independent observer would consider to be unlikely to be able to maintain the requisite objectivity to lead successfully. On the face of it a longstanding friendship would be more likely than not to compromise the ability of any professional to challenge the behaviour, mind-set and prejudices of the participant, and it must be the case that any anger management course must rigorously challenge aggressive behaviour and personal misconceptions of a participant in order to be effective.

I don’t think that Dr A-M was quite a brother in law to FY, but certainly related to him by marriage, which is what put Jimmy in my mind. Well, that, and the fact that the father also brought sit-coms into the mix, by peculiarly comparing his son to Del-boy from Only fools and horses (?) (I know…) Of course, whilst Del-Boy’s catch phrase was “this time next year, we’ll be millionaires”, it is suggested elsewhere in the judgment that this might be a step-down in fortunes for FY rather than a pipe-dream.

FY told AFC [Anna Freud Centre – the experts instructed] that he wanted his children to be respectful towards him but that K had been brainwashed by his mother and Cafcass had added to it; he had not spoken to him for two weeks. He said that her family were using the children as hostages. He described L as like Del-Boy in Only Fools and Horses and said L “is a commercial guy you can bargain with him“. FY said he was angry with K that is why he did not call him – “culturally in this case he needs to apologise…I tell L if K wants to call me then he knows how to get hold of me…this conflict is a cultural conflict, they turn the British system against me – she is bringing them up to have disrespect for me.” When talking of the incidence of physical chastisement FY said “I regret nothing regarding the children – the only thing was I was an idiot to let her come back to London.” When asked if the anger management course had proved helpful he said that he had “never had an anger problem.” These comments of FY are illuminating and reveal the basis of his case, his approach to these proceedings and his attitude towards his ex-wife and children.

I suppose if you absolutely had to, on pain of death, describe one of your children as a character from Only Fools and Horses, that it would probably be better to go for the Del-Boy comparison than using Trigger, but that’s a small crumb of comfort. In all other circumstances though, don’t compare your children to Only Fools and Horses characters.

After various attempts to get contact back up and running, the case came back to Court

When the case came back to court there had been a breakdown in L’s relationship with his father. According to his mother’s written evidence (contained in her final statement dated 8^th January 2016) FY had continued to contact the boys, particularly L outside of the times set down in the court order. He continued to make reference to, and discuss, these proceedings with the boys. He had also attempted (and sometimes succeeded) in engineering encounters with the boys, for example to contrive to see L pass by on the bus to or from school. In isolation this latter action on FY’s part would be innocuous but it was part of a pattern of behaviour designed to go behind court orders and to involve the children in flouting the orders of the court. FY had become angry with L when his son told him that he had to comply with the court timetable for telephone contact. In any event the order was a generous one for contact to take place every day.
MY’ evidence was that it was sometime around the 16^th of October 2015 that FY last spoke to L and told him to “listen…listen carefully”; and, whatever the content of the conversation his mother said both in her written and oral evidence that L ended up screaming at his father down the phone saying that his father was ruining his life. L had not spoken to his father since. Nor has his father spoken to him or even tried to; his father told me during the hearing in January 2016 that he was still waiting for an apology from L; he betrayed no sign of the hurt and confusion he must be causing his son and it was obvious that he not only considered himself to be in the right but that he also considered himself, a fully grown man, to be the wronged party at the hands of a distressed and unhappy young adolescent. From the evidence before me it was not possible to say exactly when this incident on the phone took place but it was certainly before the hearing on the 5^th November 2015.

The father after the children met with Mr McGavin, the CAFCASS officer, tried to induce his son L to send him a text message that the father could produce in Court. The Judge was singularly unimpressed.

It was Mr McGavin’s evidence that the boys had a good relationship with him and could say what they wanted to him and I accept his evidence. He is a most experienced guardian and there is absolutely nothing in the way of evidence before me which could support FY’s case that Mr McGavin had told, or even suggested to, the boys what they might say about seeing their father. On the contrary he has assisted them to get their views across by encouraging them to tell him what they wanted the judge to know. The questions that he asked were open and when he told them of his recommendations there was never any suggestion that they were expected to go along with him. Both he and the Cafcass Legal lawyer were aware of the need for separate representation should it arise and had discussed it and kept it under review.
After this interview K had spoken to FY who, again, had discussed the case and the contents of Mr McGavin’s report with him. FY told me he had sent K the Cafcass report. He was entirely unrepentant his discussions with K in his oral evidence, he accepted it was in breach of the court order and was clearly of the opinion that he had not only done the right thing but that in doing so he had undermined any case that K did, in fact want contact supervised. He encouraged and prevailed upon K to send an email to FY, so that he could produce it in court, it read, “Hi baba, I am writing to say that. Yes I want to see you and hang out with you like I used to, I want to travel to Jeddah, Dubai, Middle East. And I just want to travel anywhere in the world with you. I know you have anger issues. So I will try not to be rude to you so you don’t end up hitting us. Thank you”
In my all my experience as both advocate and judge I find it hard to think of a more blatant example of attempted manipulation. The email, however, does not support FY’s case. The final two sentences are a reference to the previous physical abuse inflicted by FY on his son and to the unpredictability of FY’s temper, along with the fact that he places the responsibility for his abusive behaviour on the children, rather than with himself as their parent and the adult. It is a further example of FY’s controlling and manipulative behaviour. There can be little wonder that L used the word “manipulative” in his text to his father when he complained to him about his behaviour.
Mr McGavin concluded in his final analysis and in his oral evidence that the end of the road had been reached. This was based on repeated attempts to re-establish contact each of which had failed because of FY’s lack of co-operation and engagement with the professionals involved. In the end he withdrew from the process altogether. Neither boy had said wanted to see their father in the present circumstances, but the guardian was sure that they would both want to see FY if they knew they would be physically safe and emotionally safe. Mr McGavin asked that in view of K’s special needs a ‘no contact’ order should be made until he was eighteen, although this would be unusual and exceptional. He felt that K had his own vulnerabilities and that he needed the reassurance of the court order both for his own sense of security and to enable him to stand up to his father until he reached his majority.

The Judge was invited by mother to make orders that father have no face to face contact with the children (there would be telephone contact and Skype contact). The Judge analysed the father’s case and presentation in this way:-

FY’s written and oral evidence was characterised by his inability or unwillingness to begin to see, never mind accept, his own responsibility for the boys’ reactions or feelings about him and how his behaviour had affected them. As Mr Verdan QC, counsel for MY, said in his closing submissions there are many examples but that two of the most obvious and closest in time to the hearing are his refusal to ring L on his birthday and his determination not to ring him unless L rings first to apologise, and, FY’s discussion with K about the proceedings on the eve of the hearing. Not only did he discuss the case he sent K the guardian’s report in order to use it in an attempt to undermine the guardian’s recommendations by pressurising K into to sending him an email confirming “his wishes” as his father wanted them to be presented. It was more than apparent from FY’s oral evidence that he is unwilling or unable to understand any of his children’s emotional needs and does not accept that he has caused them distress, upset or harm, despite the evidence before the court of their obvious distress. His own ability to take umbrage at the behaviour of his young teenaged son when L became angry with his father for the pressure he was putting on him speaks volumes for FY’s need to put his own feelings and amour-propre before the needs of his child, therefore, to suggest that he can safely have contact with M alone is nothing more than a further manifestation of this wilful or inherent deficiency in his parenting.
I accept the submission on behalf of MY that it is nonsensical for him to assert that ‘he had no bad feelings for MY’ and wanted to speak to her in a constructive way. His actions and word to the court, in correspondence and, most seriously, to their sons over the last two years is evidence which is in stark contrast to his assertions. It was apparent from his oral evidence that FY is little short of obsessed about the maternal grandfather’s alleged role in these proceedings. I have found before, and there is no evidence to change my findings, that MY is an independent, sophisticated and intelligent woman who was not in 2013, and is not now in 2016, being controlled by her father in respect of these proceeding or, indeed, any other aspect of her life.
In his oral evidence FY obfuscated, avoided answering questions and dissembled; at times he displayed an almost complete inability directly to answer a question put to him and would use the witness box to air his own feelings of hurt, despair and, at times, apparent bewilderment. Mr Hames’ submission that FY’s answers were a catalogue of grievances against the mother, her father, the professionals and even the children (as when he blamed L for not apologising to him) has some force. He claimed that he hadn’t seen or read critical documents or failed to recall important details about events or conversations put to him. He had no explanation of why he used phrases such as “so ashamed to have sons like you” to L and it was extraordinary that he claimed never to have read the L’s essay (set out above) before giving evidence. Where his evidence conflicts with other witnesses I must and I do reject it.
Both MY and FY are dual-nationals; well-educated and cosmopolitan members of wealthy families who live an international life-style and to suggest anything else is dissonant with their own oral evidence and is not congruent with the totality of the evidence before this court.

It is my conclusion that it is both in the children’s best interests and proportionate for there to be an order for there to be no direct (face-face) contact between the children and their father. There have been repeated incidents of violence directed against the boys and the need for them to be physically safe is no small matter to be weighed in the balance. When he was no longer able to punish them physically FY’s response was to make L’s upset and distress when directed at his father was to make his life as miserable as he possibly could by withdrawing any semblance of support, understanding or affection. Having regard to this behaviour and because of his special needs, for K’s protection and his need for certainty, the no contact order for him is extended in the exceptional circumstances of this case to his 18^th birthday. All three children need to be given an opportunity to develop emotionally free from manipulation by their father and free from the oppressive and damaging effects of a background of continued litigation and conflict.
I have, quite deliberately, used parenthesis in the term “indirect” contact and as a matter of fact and logic, as Dr Asen would agree Face-Time or Skype is direct face to face contact and the same risks apply in respect of emotional harm with the corresponding need for supervision. With that in mind I will order that contact is limited to telephone contact as recommended by Dr Asen; one hour, 15 minutes for each boy and 15 minutes at the end. I will hear the parties about frequency.
The children need time out, time to recover and to grow. The changes which the father needs to make before reintroduction of contact will take at least 12 months on the best prediction and while Dr Asen plainly considers that the father may not be capable of making the required changes it is to be hoped that he does.

9 Comments

Posted in case law, international, private law and tagged 2016 EWFC 16, anger management, contact, contact dispute, FY v MY 2016, Ms Justice Russell, Russell J. Bookmark the permalink.

Experts and fairness

Posted on June 11, 2015 by suesspiciousminds

The Court of Appeal decision in Re C (a child) 2015 raises a number of important practice points. There are some important NEW things, which I’ve indicated with a NEW subheading. The NEW thing on litigants in person (that the judicial training and best practice is for them to take the oath at the start of the hearing so that all of their representations are effectively evidence and on oath), is a substantial new development. I can also see that where one party is represented and the other not, that the unrepresented party will perceive some unfairness in one party having sworn that everything they say in Court shall be the truth, the whole truth and nothing but the truth, and the other party not having given the same oath.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/539.html

This arose from a dispute over contact (Child Arrangements) between a mother who was represented by counsel and a father who was appearing in person and for whom English was not his first language. The case came before the Magistrates and mother, through counsel, made a request that father should undertake a psychological assessment.

There was no formal application and none of the requirements of Part 25 had been complied with. Nor did the Court approach it on the correct statutory basis – that it is for the person seeking an expert to be instructed to satisfy the Court that it is necessary. This was appealed to a circuit Judge, who upheld the decision.

As the Court of Appeal said

It is a matter of some surprise that both of these decisions were made as if the statutory scheme and the Rules simply did not exist. That is unacceptable and it is necessary to explain why, so that the same error does not occur again.

Some very quick practice points:-

1. The father could not be compelled to undertake a psychological assessment against his will. The original order was that father should ‘submit’ to a psychological assessment, telling words.

The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

What a Court can do is indicate that a psychological assessment is necessary, and invite a parent to participate in it, and advise the parent that they may not be able to allay concerns if they don’t participate. I.e if there is compelling evidence that a parent has a psychological problem and that instructing a psychologist would allow that evidence to be countered, or a proper understanding of the nature and degree of the problem and prognosis for change isn’t available, that might remain a concern of the Court when it comes to making final decisions.

NEW

The Court of Appeal suggest that it is good practice to include in the order a judicial warning about the consequences to the party in not engaging with the assessment (which must include parents who have agreed to the assessment, in case they do not turn up to appointments)

Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

The Court making an order compelling father to submit to an assessment that he did not agree to submit to, in itself would have been sufficient to win the appeal – since father wasn’t in agreement, the order made was improper.

2. The costs were split equally, even though father was a litigant in person (and would thus be paying his share himself, whereas mother’s would be on legal aid) without any exploration of whether he could afford it.

The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

3. The Court wrongly approached it as being the father’s obligation to show why the assessment wasn’t necessary. AND in their reasons simply recited the mother’s submissions without engaging in any analysis

A flavour of the proceedings can be ascertained from this exchange between the chairman of the bench and the father in response to Ms. Slee’s application and submissions:

Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.

A “But that is wrong”.

Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.
The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

AND

The written reasons for the decision given by the magistrates are as follows:

“We agree with [the mother] that any report in these proceedings should be independent and instructed by the court not by either of the parties. We consider that a report on [the father] is necessary in order for us to progress contact further. We have been presented with a number of different applications in this case and we have made little progress since February 2014. We need to ensure that contact is safe for [the child] and if contact progresses we will need to be sure that [the child] can be safe in the care of [the father] outside of a contact centre. We have concerns about the way in which [the father] is dealing with this application, for instance the videoing of [the child] within the contact centre, a complete breach of contact centre rules and the number of applications made to this court with the inability to focus on the contact application. We therefore consider that in order to rule out any psychological issues, we require a report in relation to [the father]”.
That was no more than a recital of the mother’s case without analysis. It was not an analysis which had regard to the evidence or the criteria set out in s13(7) of the 2014 Act. The magistrates did not reason why they disagreed with the cogent advice of the FCA as they were obliged to do having regard to the terms of the statutory scheme and the procedural code.

4. The Court of Appeal will be slow to intervene on case management decisions of a Court, but where they have not followed the procedure and law, the Court of Appeal will intervene if asked. Therefore, a properly formulated Part 25 application is essential (particularly if the instruction is contested)

I entirely accept that case management is an art best practised by the judge who has conduct of the proceedings and that this court should be very slow indeed to intervene to substitute its own view. That said, welfare and procedural justice are key components of the task and if they are missing this court will be bound to intervene. I need go no further than to repeat the conclusion of the President at paragraph [37] of Re TG:

“37. None of this, of course, is intended to encourage excess on the part of case management judges or inappropriate deference on the part of the Court of Appeal. There is, as always, a balance to be struck. As Black LJ went on to observe in RE B, para [48]:

“Robust case management…..very much has its place in family proceedings but it also has its limits.”

I respectfully agree. The task of the case management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by Articles 6 and 8. The objective is that spelt out in rule 1.1 of the Family Procedure Rules 2010, namely a trial conducted “justly”, “expeditiously and fairly” and in a way which is “proportionate to the nature, importance and complexity of the issues”, but never losing sight of the need to have regard to the welfare issues involved.

NEW

5. Protection for litigants in person

The Court of Appeal discussed the training that the judiciary have had to protect litigants in person. They point out that it is good practice to put the litigant on person on oath at the start of the hearing, so that all of their representations are classed as evidence. Not having had the judicial training, I was unaware of this. It is important to know this, so that if you are in Court with a litigant in person you know whether the Court has taken that step (or formally decided not to and set out a short explanation as to the reason for the deviation)

I shall digress for a moment to consider the means by which a fair process can be afforded to a litigant in person whose language is not English, particularly in a hearing where the other party is represented. There are professional statements of good practice which already exist to ensure that a party in this position is afforded proper access to justice. The implementation of the family justice reforms has included teaching provided by the Judicial College to judges about that good practice. Magistrates sit in the Family Court as judges of that court in accordance with the Crime and Courts Act 2013. They are afforded the same teaching as professional judges. I shall simply take note of the training they have had. The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.
The court should ask the applicant to reply to any matters he or she has not covered before making a decision. Questions which either party want to ask of the other party, assuming that the representations are to be relied upon as evidence, should be asked through the judge where the questioner is a litigant in person so that inappropriate control is not exercised by one party over the other and irrelevant questions can be avoided.
This was not the process used by the magistrates and their legal advisor. Given that such a process might have facilitated a fairer hearing for the father in this case, it is regrettable that it or a similar appropriate process was not used. Give the number of litigants in person in the Family Court the time may have come for this process to be formalised into practice guidance or a practice direction.

The really sad thing in this case is that there have been three hearings about a psychological assessment, when it appears that the chief complaint against father was that he took photographs during his contact. That particular nut was cracked with a hydrogen bomb rather than the proverbial sledgehammer.

This court knows from the transcript and from a Cafcass report of 9 September 2014 which was before the magistrates that the FCA had concluded that there were no safeguarding issues, that the risk of domestic violence was low and that the child enjoyed contact with his father. The FCA’s aim had been to achieve fortnightly unsupervised contact in the community in due course and there was no obvious reason why that would not have been practicable or in the child’s best interests.
In that context what had the father allegedly done? He had photographed his son in the contact centre setting which had led to the sessions being suspended because that was a breach of the centre’s rules. He had made an allegation about the maternal grandfather which I think amounted to excess chastisement (which is an allegation not yet been determined by a court), and he had made his applications to the court. As the magistrates’ reasons record he was criticised by the mother for his behaviour during contact and for his inability to focus on and take advice about the applications before the court.

7 Comments

Posted in case law, experts, private law and tagged contact, court assistance for a litigant in person, Court of Appeal, court of appeal guidance on experts, expert assessment, litigant in person, psychologist, re c a child 2015, rule 25, ryder lj. Bookmark the permalink.

“Welfare of the child : Parental involvement”

Posted on April 28, 2014 by suesspiciousminds

There was quite a lot of debate about the wording of the new section 11 of the Children and Families Act 2014.

You may recall, in the distant mists of time, that the Family Justice Review were asked to consider whether we should incorporate into English and Welsh law the sort of provision that Australia introduced, of there being a starting point in law that it is good for children to spend time with both parents.

The Family Justice Review decided not to, but the Government decided that it did want to consult on whether something along those lines was desirable.

I wrote about the consultation nearly two years ago, here

https://suesspiciousminds.com/2012/06/13/co-op-good-with-kids/

There were four options consulted on (none of them being the presumption of equal time or shared time that the media reported on, and that the fathers’ rights lobby were asking for. I’ve tried in this article to not split it on pure gender lines – I think that all parents who don’t live with their children would like the Court to have in mind that spending a lot of time with both parents is better for a child than artificially restricting one parent’s time with their child)

Option 1 requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests
Option 2 would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents
Option 3 has the effect of a presumption by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents
Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.

The Government decided to go with option 1, but this got diluted further in the parliamentary process, until we ended up with this

Children and Families Act 2014

Section 11Welfare of the child: parental involvement

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

(3)After subsection (5) insert—

“(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”

[If you want a quick explanation – there’s a presumption that it is good for a child to have involvement with both parents (unless it would cause harm or risk of harm to the child), but that involvement can be ‘of some kind, direct or indirect, but not any particular division of a child’s time’.

It is probably worse for non-resident parents than the current Act, which tended to be interpreted that direct contact for both parents is a good thing for the child, if it can be done safely]

I’m grateful to Noel Arnold for alerting me and others to the fact that these provisions are not yet in force, and indeed, aren’t in any of the commencement orders (that’s the thing that turns a part of the Act from words into actual law to be followed)

http://www.legislation.gov.uk/all?title=children%20and%20families%20act%202014

Those commencement orders roll out various parts of the Children and Families Act 2014 at various stages this year – 1^st April, 22^nd April, 13^th May, 25^th July, 1^st September.

Clause 11 doesn’t appear in any of those, and the suspicion therefore is that it won’t be rolled out this year (My own suspicion is that it may not be rolled out at all, as happened with the “no fault divorce” provisions enacted in 1996)

It does appear a little odd to me that this fairly anodyne provision can’t be rolled out at the same time as the change of Residence and Contact to “Child Arrangements Orders” (Translation for Eastenders writing staff “They’ve changed Custody and Access to Child Arrangements Orders” )

I’m not sure what else would need to be done to make those provisions ready to go, and it suggests to me a measure of disquiet that the provisions are not really useful to anyone and would do more harm than good if released into the wild.

There’s a risk, in fact, that for a parent whose contact would be safe, but the parent who lives with a child is hostile to anything more than a birthday and christmas card, the s11 change might make this something that the Court could more easily countenance than the existing position that there ought to be direct contact. There’s statutory sanction for the fact that involvement can include ‘indirect’ contact.

They also seem to set up a situation in which parental responsibility should not be given to a parent (really only a father, since mothers get it automatically) if there’s a risk of harm. That risk of harm isn’t then balanced against the risk of harm if it were not done, or against the possible benefits to the child of doing so. Or if there’s a risk of harm flowing from the mother towards the child as well as from the father towards the child, so that there might be harm to the child either way.

Or indeed that the risk that would warrant not making a parental responsibility order or a Child Arrangement Order that provides for contact flows from that person at all. For example, if a mother wrongly believed that a father was a paedophile and the Court found that he wasn’t, but that having contact would cause the mother emotional distress and anxiety that would impact adversely on the child, the father’s request for contact could be classified as one that puts the child at risk, even though he has done nothing wrong.

There must be a degree of doubt whether rolling out a revised section 1 (via giving s11 Children and Families Act a commencement date) might undermine the existing body of caselaw which was determined under the current s1

For example,

“The Courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa… unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative”

Re O (A child :Contact :Withdrawal of Application) 2003 1 FLR 1258

“It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living”

Re P (Contact: Supervision) 1996 2 FLR 314

“No parent is perfect, but “good enough parents” should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”

Re S (Contact: Promoting Relationship with Absent Parent) 2004 1 FRL 1279

“Contact between parent and child is a fundamental element of family life and was almost always in the interest of the child… there is a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact”

Re C (A child : suspension of contact) 2011 2 FLR 912

I would be very reluctant to have any of those vital principles, which were determined under the old s1, weakened or put in doubt by a changed s1 with a slightly different emphasis.

[I am sure that some non-resident parents will feel that these principles didn’t seem to get much of a look-in when their own case was decided before a District Judge, but they are principles that can be relied on and pushed under the Court’s nose at the moment, and they are important ones]

I have to say that I greatly prefer the current section 1 of the Children Act 1989, which is just plain and simple that when deciding anything that affects a child, the Court’s paramount consideration must be the child’s welfare.

If and when s11 comes into force, all we have is an embroidering of that position which if anything makes it less clear and less meaningful. It certainly isn’t a victory for those lobbying for a fairer and more equal treatment for parents who don’t live with their children.

[I have to confess that it has never sat comfortably with me that portions of an Act go through parliamentary scrutiny and royal assent, and in effect get voted on by the House of Commons and the House of Lords and win that democratic approval, but ultimately become law on the decision of a single government minister to push the “Release the Clause” button or not. But here, I’d be happy for the button not to be pushed – I think that the clause makes things worse for non-resident parents, and they really didn’t need the deck stacked against them]

7 Comments

Posted in children and families act 2014, private law and tagged commencement order, contact, direct contact, indirect contact, is section 11 Child and Families Act in force, new section 1 children act, presumption that parental involvement good for children, section 11 children and families act. Bookmark the permalink.

Applying for contact AFTER a child is adopted

Posted on March 16, 2014 by suesspiciousminds

The family law provisions of the new Children and Families Act 2014 come into force on 22nd April.

The Act itself (as opposed to press releases boasting about how it will solve everything, give us free energy, a perpetual motion machine and bring peace and harmony to both the Middle East and the pro and anti-Europe wings of the Tory party) can be found here

Click to access ukpga_20140006_en.pdf

There’s a LOT of it, so am going to try to tackle it in chunks. Today’s topic is going to be the new section 51A of the Adoption and Children Act 2002, which makes provision for applications for contact AFTER an adoption order has been made.

Historically, Courts have been able to consider applications for the contact that a parent would have POST-ADOPTION, but that application and determination of it would have been BEFORE the adoption order was made. Thus, the adoption order would in effect be the last time the child would be the subject of litigation, and the Court’s involvement in their life would end. (There are exceptions – as we saw in Re W the President was willing to overturn an adoption order to hear an appeal, there are adopters who end up being involved in subsequent care or private law proceedings themselves, but generally, once the adoption order itself was made, the Court were done with the child)

So, what about post 22nd April? Well, s9 of the Children and Families Act 2014 says this :- [bold bits are mine, for emphasis] – and it is important to note that this doesn’t just apply to adoption orders made after 22nd April, it applies to ALL adoption orders

9 Contact: post-adoption

(1) After section 51 of the Adoption and Children Act 2002 insert—

“Post-adoption contact

51A Post-adoption contact

(1) This section applies where—

(a) an adoption agency has placed or was authorised to place a child for adoption, and

(b) the court is making or has made an adoption order in respect of the child.

(2) When making the adoption order or at any time afterwards, the court may make an order under this section—

(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or

(b) prohibiting the person named in the order under this section from having contact with the child

(3) The following people may be name d in an order under this section—

(a) any person who (but for the child’s adoption) would be related to the child by blood (including

half-blood), marriage or civilpartnership;

(b) any former guardian of the child;

(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with

children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;

(e) any person with whom the child has lived for a period of at least one year. [This has a cut-off of not applying if it was more than 5 years ago, but seems to me that it would potentially cover relatives who cared for the child, foster carers, and possibly siblings]

(4) An application for an order under this section may be made by—

(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,

(b) the child, or

(5) In deciding whether to grant leave under subsection (4)(c), the court

must consider—

(a) any risk there might be of the proposed application disrupting

the child’s life to such an extent that he or she would be harmed

by it (within the meaning of the 1989 Act),

(b) the applicant’s connetion with the child, and

(i) the child, or

(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made

Obviously, there’s a lot there, and it is written in Law not English.

The nub of it is, a birth parent, or someone with whom the child has lived for at least a year, can apply for an order for contact with that child, including staying contact, and the application can be made AFTER the adoption order is made. They will need Leave of the Court to make that application – i.e there is a two stage test – can you persuade a Court to give you permission to make an application for contact, and then the Court deciding whether your application succeeds and you GET contact.

Leave applications are tricky – if you imagine that there’s a high jump bar, and that the parent will get leave if they can jump over it, and won’t get leave if they can’t, that’s a helpful way to look at it. The problem is, making sure that everyone knows exactly how high that bar is set and that a Judge doesn’t end up setting it too high, or too low. (That has been the subject of much of 2013s law developments, with the Court of Appeal concluding that the bar on leave to oppose adoptions has been set too high for parents and needs to be adjusted to make it a fair test)

This test is contained in s51(5) which says that the Court MUST consider whether granting permission might disrupt the child’s life to such an extent that they would be harmed by it (note that this is NOT whether contact would cause that harm, but allowing the ARGUMENT about contact would cause that harm). The wording here is strange, in that the reference to ‘harm’ then says in the meaning given in the Children Act 1989. Does that therefore mean ‘significant harm’?

The Court MUST also consider the applicant’s connection with the child, and any views expressed by the child or the adopters.

You would have to say, in light of Re B-S, Re W et al of 2013, it is at best uncertain as to how any application for leave under s51 to apply for a contact order post adoption order being made would go. What we DO know is that the application would have to be served on the adopters (presumably via the Local Authority, as the parents won’t know the adopters address), and they would be represented in the leave argument hearing.

We don’t know whether public funding would cover a parent making a s51 application – it certainly isn’t automatic, which puts the parents in the hands of the generous discretion of the Legal Aid agency in making that decision. The adopters won’t automatically get legal aid to fund their legal costs either, even if they financially qualify. That probably leaves the adopters going cap in hand to the Local Authority asking for help with legal fees, or paying out of their own pocket, or trying to represent themselves (I honestly can’t see how the latter would work, particularly if the parent is representing themselves too)

In reality, a leave application can need the filing of evidence and a few hearings before the fight itself can take place. Note that in this leave requirement (unlike revocation of an SGO or Placement Order or leave to oppose adoption) there’s no requirement on the parent to show change or significant change since the order was made – they can just say that they want to have contact with their child.

The leave application can be a worrying and anxious time. It can potentially unsettle the child.

So my question really is

For a birth parent – is this a power that is potentially going to end up in you being able to get contact with your child post adoption, in which case it would be a good thing for you, or is it a ‘fake’ potential avenue that is actually a dead end just putting you through stress and optimism and then disappointment as each and every application for leave is refused? If it is the latter, why even put it in the Act?

For adopters – how does having this provision, knowing that you could be drawn into court proceedings and having to file statements and have arguments in court about contact, after the adoption order was made, make you feel? And again, are they applications that have a chance of being made, or are you going through stress and anxiety for nothing?

Unless you are actually going to make s51 contact orders on parents applications after the adoption orders being made, it seems to me to just cause emotional pain to the parents because of false hope, and emotional pain and anxiety to adopters as they go through the process. Does that then suggest that Parliament envisages that in some cases (not just the exceptionally rare ones) parents will succeed in these applications and get their contact? And how will that change the character of adoption?

And in a final round-up, what prevents a parent who fails to get leave under s51 making another application next year, or the year after, or the year after that? They may never get their s51 leave, but they could hope to make life awkward and difficult for the adopters, maybe get the adopters worn down to offer a compromise or agree the contact sought.

Well, what “stops” this sort of hopeless, frivolous or vexatious litigation in the Children Act 1989 (and ‘stops’ is a bit strong) is section 91(14) of the Children Act 1989, which gives the Court the power to say to a person who is making those applications, you can’t make them any more – or not without leave of the Court anyway

s91 (14)On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.

Two problems with this

1. s91(14) applies to orders or applications made under the Children Act, whereas a s51 application is made under the Adoption and Children Act 2002 – there’s no provision similar to s91(14) under the Adoption and Children Act (why would there be? Up until now, all applications ended once the adoption order was made)

2. Even if it did, all it does is turn the 2 stage test? (May I make the application, can I have contact?) into a 3 stage test (may I ask whether I may make the application, may I make the application, can I have contact?) And stage 1 still involves the adopters being notified, and having to come to court and fight the first stage, so really, what difference does it make?

So, to stop s51 applications being rained down on the adopters, the only real mechanism is to apply to the High Court to have the applicant declared as a vexatious litigant. That forbids them from making any Court application without permission of the High Court (so, we are back to the 3 stage test, with the problems already discussed)

[if you are interested further in the concept of vexatious litigants, this is a good speech on the topic, which gives the history and some projections for the future http://www.judiciary.gov.uk/media/speeches/2006/speech-mor-30062006 ]

You also need to bear in mind that the current caselaw on making contact orders against adopters is not terribly helpful to parents. It has effectively two strands – if the contact is agreed don’t make an order, and if the adopters don’t agree the contact there would need to be very compelling reasons to impose it on them. (Are those guidelines dead in the water now that s51 is upon us? Is there genuinely a different ethos in Parliaments, and thus the laws view on making contact orders against adopters? We’ll have to wait and see how the Court of Appeal views this) .

ADDENDUM EDIT

I am aware that my analysis of this has probably stirred up feelings of hope for birth parents and a degree of anxiety for adoptive parents. I am also aware that the Adoption Tsar, Martin Narey, considers that the provisions of s51 are primarily about allowing adopters to control contact and that there is no need for anxiety. I don’t want to make people worried unnecessarily, I’m not interested in scaremongering.

But, the power of the Court to make an order for contact AFTER the adoption order has been made is one that is within the new Act, and the power for a birth parent to seek to make that application is also there.  (I have seen the new application form, and it also makes it clear – there’s a box to fill in if you are a biological parent, and a box to fill in if the adoption order has already been made)

For me, the wording in s51A is clear – an order about contact can be made AFTER the adoption order is made, and an application can be made by a parent. The parent needs leave, and we simply don’t know at this point how the Courts will approach that leave decision. Post Re B-S, any application for leave is not as hopeless an application as it would have been a year ago, and the same is possibly true here.

For the child, it is certainly the case that contact post adoption won’t be ordered unless the Court look at it carefully and decide that it is in the child’s best interests (and the burden falls on the person seeking that contact). But for the adopters, and the parents, the actual leave application can still be stressful and anxious – both will have to attend Court and won’t be sure of the outcome.

As discussed in the blog immediately after this one, it seems highly likely that a biological parent won’t get legal aid to make the application – whether that makes things better or worse from an adopters point of view is hard to call.
 

25 Comments

Posted in adoption, children and families act 2014, contact and tagged adoption orders, application for leave, contact, post-adoption contact, s51 Children and Families Act 2014, s51 contact applications, section 91(14) orders, vexatious litigants. Bookmark the permalink.

Scissorhands versus Scissorhands

Posted on April 12, 2013 by suesspiciousminds

An imaginary judgment [it has been a while, and I always like doing these]. This is like a Kramer versus Kramer for whimsical emo kids…

The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.

The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long. Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.

It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.

Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.

The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.

It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.

He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.

The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face.

One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.

I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.

I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.

However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)

Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.

I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent. When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.

My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby. A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.

I am therefore driven to conclude that unsupervised contact for this father is not possible.

I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable). Nor are any members of her family willing to do so.

The father has no family members who could undertake this task.

Neither parent is in a financial position to fund the supervision of contact themselves.

I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being

IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912

And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.

Having established that no family members can supervise the contact, that leaves only professionals. A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.

Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.

Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?

The answer, sadly, is that they are not.

I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)

I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?

The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997) 1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far. Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)

Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.

There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment.

I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.

RE K (Children) 2012 [2013 1 FCR 87] being authority for that point.

But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.

I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.

To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut.

[Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]

I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.

It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future) – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so. Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.

Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.

I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.

Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989

I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent.

I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored. I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)

The parents, may of course, vary the handover location by agreement.

I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.

If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.

Thank you all for your time.

[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her. I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact.

The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called Judge Knott-Lestyebe is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.

Although even this footnote now gets its own footnote – a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.

Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece – there is no way that post LASPO either party would have had counsel ]

3 Comments

Posted in case law, contact, imaginary judgment and tagged compelling a local authority to supervise contact, contact, edward scissorhands, family assistance order, imaginary judgment, supervision of contact. Bookmark the permalink.

Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

I blogged about those consultations here :-

https://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/

Anyway, here is Dr Dale’s response.

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things. This document did that, and for that reason, I commend it to you.

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working.

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

I think that most people in the UK would agree that children should not be sexually abused (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers), but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm? Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’ against ‘this child can’t stay at home’

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

I would like to hope that if you pulled out a random judgment from any care case decided by any Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300. We have no way of knowing. I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe. But either of us could be wrong. We might both be (and probably are)

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in a family justice system that results in Care Orders being made.

Anyway, enough about me, on with Dr Dale.

He opens with this :-

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland. I’m sure it has never been as overt as that]

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

It is always worth a reality check, and this whole section is one. Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now. I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system? How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

Some more on compulsory adoption here :-

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at. I can see an argument that can’t be dismissed out of hand that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of “Is the system actually getting the right answers now?”

As Billy the Kid once said “Speed’s fine, partner, but accuracy’s final”

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)]. Which I have blogged about here

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’ and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point. Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’ – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

13 Comments

Posted in adoption, consultation, contact, family justice modernisation, public inquiry, timescales and tagged adoption, child rescue, contact, family preservation, forced adoption, kenrick, peter dale, research on contact. Bookmark the permalink.

I wish I was Special, you’re so very Special (Guardians)

Posted on August 24, 2012 by suesspiciousminds

Some musings on Special Guardianship, and particularly what the ‘character’ of such placements are when it comes to working out level of contact

I did an SGO hearing this week, and two things struck me on it.

The first, is quite simple, but struck me for really the first time. We did the hearing, which involved broad agreement and ample praise about the placement itself and the making of an SGO, but then quite a bit of to-and-fro and drawing up preambles about contact. We then had a very short hearing, the orders made as drafted, and as I left, and thanked the Special Guardians, they remarked “is that it? What happens now?” and I told them about the order, and keeping it safe and whatnot.

But it really did strike me, that we are making an order for a child to live permanently with a family member, and there’s nothing like the ‘celebration’ hearing that there is for an adoption hearing, when the system has a hearing that isn’t about detail, or wrangling, or dispute, and is just a simple hearing which the child and the carers attend to just formally recognise that this is important and should be a sense of occasion. Should SGOs end, as they do now, with a whimper, rather than a bang?

The second, is more complex, and potentially more interesting (if you are a geek), and I would thank counsel for the mother for raising it. [I won’t name her, but it was a fascinating issue – well, to me at least]

The question, in simple terms, is this :-

When determining the level of ongoing contact, do SGO placements have a particular character, or is the contact just determined on a case by case basis?

To illustrate – here are three possible outcomes for children who are subject to care proceedings if they don’t go home, and three possible levels of contact. From the relatively narrow cross-section I have done, I can readily match them up, but is that just a result of a narrow cross-section, or local practice, or is it reflective of the placements having a particular character which produces a particular contact regime

Adoption with a stranger

SGO with a relative / foster carer

Long-term fostering with a foster carer

and three possible contact quantums

Six times per year

Two or three times per year

No direct contact or once per year

Maybe you haven’t matched them the same way I did, based on my narrow experience; but it does seem to me that there’s something of a spectrum of character (and frequency of contact) which starts with Adoption (and low contact at one end) and Long-term fostering (and six or so sessions of contact at the other).

SGOs come somewhere on that spectrum, but are they (as I was arguing), closer to Adoption, being a form of permanence, or as the parents were legitimately arguing, closer to long-term fostering?

On the one hand, one can see the parents perspective that it feels peculiar to have a higher level of contact if your child is placed with a stranger than if the child were placed with a member of your family; on the other that managing contact where the child is in the care of the State is different than when the child is permanently cared for by an individual who has legal responsibility for them.

So, does an SGO placement have a particular form of character, which makes it Permanence, and this has an impact on the right sort of contact for that child?

Or, is the character of the type of placement completely irrelevant in SGOs and the right level of contact falls completely on an analysis of the particular case?

The original White Paper is interesting here – look at this bit (my underlining):-

“5.10 The Government will legislate to create this new option,

which could be called “special guardianship”. It will only be

used to provide permanence for those children for whom

adoption is not appropriate, and where the court decides it is in

the best interests of the child or young person. It will:−

give the carer clear responsibility for all aspects of caring for

the child or young person, and for making the decisions to

do with their upbringing. The child or young person will no

longer be looked after by the Council; provide a firm foundation on

which to build a life−long permanent relationship between the

carer and the child or young person; preserve the legal link

between the child or young person

and their birth family; be accompanied by a proper access to a full

range of support services including, where appropriate, financial

support.”

Now, I’m not at all sure that SGOs are ‘only used to provide permanence for those children for whom adoption is not appropriate’ but that does suggest that “Permanence” was in the mind of those who constructed the Act and concept.

What we do know, in terms of character, is that SGOs are not just a family member version of Adoption. The Court of Appeal made that plain in RE AJ (A CHILD) (2007) [2007] EWCA Civ 55 and also RE S (A CHILD) (2007) [2007] EWCA Civ 54

Special guardianship orders did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families. No doubt there were many cases in which a special guardianship order would be the appropriate order, but each case had to be decided on what was in the best interests of the particular child on the particular facts of the case

And in terms of contact, certainly the Court treat the views of adopters and SGOs differently.

Compare RE L (A CHILD) (2007) [2007] EWCA Civ 196 which dealt with Special Guardians who were appealing a contact order being made that they had opposed and the Court of Appeal upheld the original contact order

With RE R (A CHILD) (2005) [2005] EWCA Civ 1128 where the Court of Appeal held that making contact orders in the teeth of opposition from adopters was highly unusual, and effectively wouldn’t be done unless the Court considered the adopters were objectively and subjectively unreasonable.

In Re L – the contact order and various conditions, had been at the behest of the Local Authority, and the grandparents were deeply unhappy about it. They sought to argue that, in terms, if the Court were making an SGO they ought really to let the Special Guardians get on with it, and not fetter their exercise of parental responsibility.

This is what the Court of Appeal said about that (underlining mine)

33. There is in my mind no doubt that GP are correct in their understanding that the SGO confers parental responsibility upon them to a greater extent than they enjoyed under the residence order. It is apparent to me that the special guardian can trump the exercise of parental responsibility by a parent. The Local Authority have no parental authority and never have had in this case. Often a SGO will replace an existing care order and then by virtue of s. 91(5A) of the Children Act 1989 the SGO discharges the care order. All of this sits comfortably with the philosophy which lies behind the introduction of this new form of order. It is intended to promote and secure stability for the child cemented into this new family relationship. Links with the natural family are not severed as in adoption but the purpose undoubtedly is to give freedom to the special guardians to exercise parental responsibility in the best interests of the child. That, however, does not mean that the special guardians are free from the exercise of judicial oversight.

34. S. 14B(1) requires the court when making the SGO to consider whether a contact order should also be made. The obvious beneficiaries of that contact order are the natural parents who have been sidelined but not totally displaced by the making of this order. If a contact order is made then it can be hedged about with conditions see s. 11(7) and s 14E(5) of the Act. S. 14B(2) also permits the court to give leave (and by implication, therefore, to refuse to give leave) for the child to be known by a new surname. It follows as night follows day that the court has the jurisdiction to make the orders set out in paragraphs 2, 3, 4 and 5 of the judge’s order and GP’s attack has, therefore, to be one directed at the manner in which the judge exercised the discretion she so clearly had.

What the Court effectively decided here was that the views of the SGO about contact were not binding or final, and where it was appropriate to make a contact order in the teeth of opposition from the SGOs (or prospective SGOs), the Court could do so.

Wilson L.J did express a measure of disquiet about contact being imposed in the face of such opposition, before concluding that it had been a matter for the trial judge, not the appellate Court :-

67. I have however felt some, if transient, hesitation about the proper approach to the only other substantial part of the grandparents’ appeal, namely their objection to the order for supervised contact, outside the home and in their absence, between E and the mother. For example I have asked myself whether the judge sufficiently factored into her reasoning either the profundity of the grandparents’ opposition to such contact; or their sense of outrage in the event that their conviction as to where E’s interests lie were to be overruled; or their apparent state of emotional exhaustion; or the importance for E that the pressures upon them should not become insupportable.

Would I (so I have wondered) have made an order, in the teeth of opposition of that character, that, in accordance with the detailed provisions of the “Package of FamilySupport” annexed to the order, a child then less than four years old should, on 5November 2006, i.e. only two months after the date of the order, be collected by a”contact supervisor”, whom the child will be likely to have met only twice, and takenaway for four hours to meet the mother for the first of the six occasions of contact?

68. But, almost as quickly as they have crept into my mind, I have had to remind myself that such questions are not aptly posed to himself by an appellate judge. The essence of our system for such determinations of issues as depend upon the exercise of a discretion is that it is for the trial judge to conduct the exercise by evaluation of the rival arguments following full exposure to the evidence by sight and sound. The role of the appellate court is limited to an enquiry into whether the judge’s reasoning betrays error in the manner of her or his conduct of the exercise or whether the determination must be the product of such error in that it is plainly wrong.

What is left unsaid, is how much weight, if any, ought to be given to the views of the prospective carer.

The views of the prospective SGOs (and equally, the views of the parents) don’t expressly come within the Welfare Checklist that the Court must consider, but it would be hard to imagine that a Judge would not take into account, say, that the SGO was willing to countenance contact three times per year and the parent wanted twelve. Both of those views must form some part of the decision-making process.

It is interesting*, of course, that in Re L, the Court of Appeal decided that the legal powers to make a contact order alongside SGO existed, ergo it was a judicial discretion to make them in the teeth of opposition, whereas in Re R, the Court of Appeal acknowledged that the legal tools were there to make a contact order alongside adoption but imported a rule of thumb that to do so in the face of genuine opposition from the adopters would be highly unusual (not quite a rebuttable presumption against contact orders in adoption cases, but not a great distance from that)

[*to me, not necessarily universally]

So, it is plain that there is some distance on the spectrum between Adoption and SGO, and in the way the Court will treat such placements when considering contact. But how much distance remains uncertain.

[I know that there are some Family Placement folk who read this blog, and I would really welcome some views on it. I’m mindful that SGOs have been legal for about eight years now – I think the Adoption and Children Act 2002 that introduced them got phased in, in 2004; and that probably the majority of children who have been made subject to SGOs remain so, being still children. I wonder how much, if any, research has been done to examine children’s experiences of SGOs, and where that research might take us. Is there some part of the contact process which differs in a case of Permanence (where the child’s needs are being met, legally and on the ground, by individuals, rather than by the State?) ]

Post-script

I was wrong, in a discussion with my wonderful significant other this week, about how hard it is for a parent to over-turn an SGO once made. I said it was relatively easy, and she thought it would be very hard.

I’d thought that the application would just be a straightforward section 10(9) leave application (i.e that if you had a good enough case to argue about the Court discharging the SGO, you’d be able to argue it) but I see now from RE G (A CHILD) (2010) [2010] EWCA Civ 300 that the Court of Appeal have ruled that it is appropriate to use the Warwickshire test from WARWICKSHIRE COUNTY COUNCIL (Appellant) v M (Respondent) & (1) M (2) L (BY THEIR CHILDREN’S GUARDIAN) (Interveners) (2007) [2007] EWCA Civ 1084 that test being (I’m paraphrasing, but not by much) “the law says you have to have a mechanism that lets you challenge this order at a later point and there’s a hurdle to get over, but the Courts are blowed if they are going to set you a hurdle that any actual human being could ever get over, in order to use that mechanism”

Using the Warwickshire test makes it very hard, without question.

So, my wonderful significant other was right, and I was wrong. Not for the first, nor I fear the last time.

6 Comments

Posted in adoption, case law, contact and tagged contact, girls are generally right you know, levels of contact, permanence, special guardians compared to adopters, special guardianship, warwickshire, what the hell am I doing here? I don't belong here. Bookmark the permalink.

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted on July 23, 2012 by suesspiciousminds

An analysis of the Government’s consultation on placement of siblings and contact post placement

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard‘

But I digress…

The consultation on sibling placements can be found here:-

Click to access placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

Click to access contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a McDonalds with a shiny pound coin in hand and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

Comments Off on We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted in adoption, consultation, family justice modernisation and tagged adoption, ah this is obbiously some new usage of the word 'consultation' that I was previously unfamiliar with, consultation, contact, martin narey, proposed changes to legislation. Bookmark the permalink.

My kith and kin, oh I have sinned

Posted on May 17, 2012 by suesspiciousminds

Research on Contact in kinship placements

An organisation called Family Rights Group, who are a charity advising parents who are involved in care proceedings have commissioned some interesting research about contact for children who are living with family-and-friends carers. This is something which has become more prevalent over recent years (and ought to be generally viewed as a good thing that children who can’t live with their birth parents are cared for by family members rather than by the State) and is likely to continue to increase, particularly as the pressure on the demand for foster carers builds up.

This report is interesting, because it addresses commonplace experiences in the family justice system from a group who really have the quietest voice in the care proceedings – the family members who step in and care for the child either as an interim measure or permanently, and who are doing such a massively important role yet have very little input into the arrangements that are being made for the child who will be living with them.

I think that the research and the report is valuable because it doesn’t come in with any fixed agenda, but is rather an attempt to look at the issues of contact where a child is placed with a family member from each viewpoint and to see what could be done to make it work better for everyone.

If this is reflective of Family Rights Group generally, they come across very well – thoughtful but practical and providing proper sound advice without being politicised on the “parents bad / social workers wicked” spectrum. I suspect that they have quite a lot of sensible advice to offer to people and more professionals and clients could benefit from what they have to offer.

The report can be found here : –

http://www.frg.org.uk/managing-contact-with-parents-and-relatives-for-children-living-in-family-and-friends-care-arrangements

The accounts that the kinship carers give of how the children came to be living with them, and the varying relationships that they had with Local Authorities, ranging from support to resistance and opposition, are interesting and worth reading. (It is also noteworthy how ambiguous some of the placements were in relation to whether the child was ‘looked after’ or not, which has obvious financial implications for the carer and the LA involved)

“Where the initial legal arrangement was clear, the carers interviewed had taken the children under a variety of different legal arrangements, including interim care order,interim residence order, under s.20 Children Act 1989 as looked after child, under private fostering, and as a private family arrangement. There seemed to be no standard legal route that would be followed by children going into a family and friends care arrangement. Research carried out by Family Rights Group with Birmingham University

(2009) suggests that this might be a consequence of different local authorities having vastly different policies for working with family and friends placements, where such policies exist at all.1 This survey of English and Welsh local authorities revealed that most councils (69%) did not have a written, coherent approach to working with family and friends care. Where policies did exist, they encouraged different approaches to the legal status of children placed with family and friends carers: a few recognised that children placed there by the local authority should be treated as looked after, and their carers

supported as foster carers, but others discouraged the use of family and friends carers as foster carers in almost any circumstances.”

The research makes some recommendations, from the perspective of family and friends carers about contact, and how this should be managed :-

Good practice in contact – recommendations from family and

friends carers’ perspectives

The following recommendations for good practice derive from the experiences of contact which family and friends carers have described in this chapter. The recommendations draw upon carers’ observations of what has worked well in contact, what could have improved the experience of contact, particularly for children, and ideas from carers themselves on what would be good practice in contact.

Carers recommend:

Ø That local authorities should be clear with family and friends carers about the legal arrangement of the child’s placement with them, and the legal basis for any restrictions that they are asking the carers to impose on the child’s contact with parents. They should explain why these restrictions are necessary for the child’s wellbeing. Carers should be informed whether the child is subject to a child protection plan or not, whether the child is looked after or not, and who holds parental responsibility for the child.

Ø The experience described by three interviewed carers of having to resist the separation of siblings by the local authority indicates that local authorities should give careful consideration as to whether a decision to separate siblings will be in the best interests of the children, particularly where there is a family and friends carer who is willing to keep the siblings together, given that placements where children are placed with siblings are less likely to be disrupted than placements where children are placed alone,2 and given also that a plan to place one or more children for adoption could result in the permanent loss of contact with siblings placed elsewhere.

RESEARCH STUDY

2 Mullender, A ‘Sketching in the background (1999), Mullender, A ed. We are family: Sibling relationships in placement and beyond BAAF 1999

Ø Local authorities should consult the carers, and where possible the child, before setting up any contact arrangement. The arrangement should take into account the carer’s and the child’s views on what will make the contact safe and enjoyable, whether it should take place in the carer’s home or another venue, what level of contact will be sustainable for the carer and the child, and the procedures that should be followed if the arrangements need to be changed should be specified.

Ø There should be an expectation that it will be adults rather than children who have to bear the strain of contact, for example where long distances need to be travelled, or in arranging the time of contact. Consideration should be given to how contact fits into the child’s routines and activities.

Ø Where the local authority is involved in the contact arrangement, there needs to be good communication between carers and social workers about the risks to the child from contact. Social workers must inform carers about any potential risks, and the carer must inform the local authority about any risky incidents.

Ø Carers and children must be taken seriously and listened to if they report concerns about problems with contact, such as the child’s opposition to the arrangement.

Ø The local authority, carers, parents, and where appropriate children should draw up a contact agreement, which spells out not only where, when and how often contact will take place, but also what will happen if either party is unable to keep to the agreement, or shows up late, or does not give notice of not attending contact. Clear direction from the local authority would assist with this.

Ø Where carers are asked to participate in letterbox contact arrangements, they should routinely be provided with information and guidance about what this involves.

Ø Decisions by the local authority not to include a willing carer in contact arrangements, and not to inform the carer about what happens within contact they are not part of, need to be carefully considered. The reasons for not including or informing the carer should normally be explained to the carer.

Ø Where a local authority has set up a contact arrangement, they should consider how the support might continue to be available for the carer even after the local authority has ended its formal involvement, eg by having a specialist kinship worker who can be available for consultation, or by providing a duty service the carer can call.

Ø Given that local authorities set up some arrangements which appeared to be potentially quite harmful for children, carers should have a vehicle for raising valid objections to contact arrangements which they believe will be damaging for children.

Ø Local authorities should have an information package that is provided to family and friends carers, which includes advice about contact and a template for a contact agreement. Where possible, carers should be offered access to a tailored preparation/induction course for family and friends carers, such as is now being designed by Family Rights Group and The Fostering Network.

ØCarers find a lot of support in being able to discuss contact with other family and friends carers, whether this is a group which meets in person or an online forum, and carers with experience of contact can provide other carers with valuable advice on this difficult and sensitive topic. Carers should be encouraged to join or set up their own support group, or to join Family Rights Group’s online forum.

The report also considers parents experiences with family and friends carers, and makes some recommendations from their perspective : –

Good practice in contact – recommendations (parents’ perspective)

The following recommendations for good practice derive from the experiences of contact which the parents of children placed with family and friends carers have described in this chapter. The recommendations are based both upon the parents’ descriptions of their experiences, and upon their concluding suggestions for what could be done to improve contact in these circumstances.

We recommend:

Ø That local authorities ensure they are seen to be even-handed with parents when children are placed with family and friends carers and contact arrangements are being made. We recognise that for some parents the experience of losing their children will make it difficult if not impossible to feel that they are getting a fair deal. In addition, the adversarial nature of court proceedings can make the working relationship between parents and social workers difficult to manage. However, social workers have to ensure that contact arrangements are decided according to the child’s needs, and do not unnecessarily become part of any conflict with parents.

Ø Restrictions on children and parents showing affection to one another, or on children being informed of the enduring love of another parent, during contact needs to be justified. The purpose of contact supervision is to prevent the child being harmed, emotionally, physically or otherwise, and parents should be prevented from showing affection to their child only if this would be harmful.

Ø Where parents wish to correspond with their child, or pass on gifts, then any restrictions should be stated openly and explained to the parents. It is unfair to both parents and child to prevent this without explanation.

Ø Where local authorities have been involved in removing a child from their parents, and placing the child with family and friends carers, then the local authority should have a duty to remain involved long enough to ensure that contact arrangements are working. There should be a way for parents to bring in the local authority where contact arrangements are not going according to an agreed plan, or where they are not beneficial to the child.

Ø Consideration should be given to parents who are anxious about their child’s wellbeing, possibly because of limited or no contact, having the opportunity to receive independent information about the child.

The report then approached matters from the point of view of professional practitioners (i.e social workers)

The practitioners made the following recommendations for good practice in contact:

Ø In making decisions about contact the focus should be on the benefits to the child, and not the adults.

Ø Parents and carers should try to ensure that they are saying the same things to the child, as failure to do so can lead to confusion for the child and conflict between the parents and the carers.

Ø There should be clear guidelines and expectations about contact. It helps if the practitioners can meet and talk to the birth parents first, setting out the groundrules, and the possible consequences of their actions to the parents. There should be a review of how contact is going, and any problems should be dealt with in between contacts.

Ø The role of carers in helping children to feel secure in contact should be recognised and supported.

Ø Notes should be taken of how the child appears to be, not only during contact but before and afterwards as well.

Ø Family Group Conferences and mediation should be considered, particularly where it is difficult to agree a contact arrangement or to sort out problems.

Ø In unusual circumstances, where approved foster carers become family and friends carers, they may need to be supported to think about contact differently from the way they are used to.

Ø Where court guardians make recommendations about contact they should have to justify it as being in the best interests of the child, and be held accountable for the consequences of the contact for the child.

Ø The arrangements that will be in place for contact after proceedings, eg whether or not it will be supervised and where it will take place, should be tried out before the end of proceedings.

Ø Careful consideration should be given to the suitability of the venue being used for contact, eg a children’s centre might be more suitable than a contact centre for contact involving younger children, if it is more geared towards providing play facilities for children.

Ø Although contact can be part of a ‘children in need’ plan, when the children in need team no longer need to be involved there should be another lead professional to take on responsibility for the contact.

And then drawing all of these various strands together, these conclusions :-

Considering the views of parents and carers, and the suggestions made by practitioners, we recommend that the following principles are observed when arranging or participating in contact arrangements:

i Make the child’s needs the first consideration. A step towards doing this can be for the adults to put themselves in the child’s place, and think about contact issues from that perspective:

• What will the child’s earlier experiences of their parents and others mean for

contact arrangements?

• What pressures might the child feel they are under?

• What could be done to make contact more enjoyable for the child?

This is a step that should be taken by all of the adults involved in arranging the child’s contact. Practitioners need to ensure they are focusing on meeting the child’s needs. Carers need to understand why it might be important to a child that they have contact with parents, even where the carers may themselves feel angry with those parents. Parents need to understand that it might be in the child’s best interests to have less contact with them than they want and the importance of routine. For example, a contact plan that resulted in a child spending part of each week with four different carers, staying

overnight with three of them, was probably drawn up to meet the demands of the adults and not the needs of the child.

ii Good communication is paramount. All parties who are involved in contact need to ensure that everyone is kept aware of contact arrangements and any changes to those arrangements. Good communication could involve:

Practitioners consulting parents and carers about contact arrangements, and

meeting with them to discuss how contact is working out

• Using Family Group Conferences to make arrangements for a placement,

including arrangements about contact. Family Group Conference or mediation

can also be used to assist communication between parties who are in

disagreement about contact.

• Drawing up a contact agreement, specifying: where, when and with whom

contact will take place: What will happen if it cannot take place? What behaviour would be considered inappropriate in contact? What indirect contact can take place and how often? Etc.

iii Recognise the loss that parents face. While parents will have legal rights to be kept informed and involved in decisions being made about their child, which will be determined by the child’s legal status, regardless of legal status there should also be an underlying principle that parents should be kept informed and involved in significant decisions, unless their involvement would be harmful for the child. There needs to be recognition of the loss that parents have faced, and practitioners need to continue to support parents to manage contact and manage their feelings.

iv The venue and the contact arrangements should feel safe for the child and the carers. Where contact is unlikely to be safe, then there should be a risk assessment to help plan what could make it safe, e.g. does it need to be supervised, what would be a safe venue, can it happen safely at all?

v Access to good information and advice. Both parents and carers who were interviewed felt that it was important to have access to good information as early as possible. An information pack could give parents and carers basic details about the legal position of family and friends care placements, and suggest where to get more detailed information and advice.

vi Monitoring procedure. There should be a procedure for monitoring how a

proposed contact arrangement is working out. This could involve a trial period before any court order for contact is made or a period where practitioners meet with the parties to find out from them about any difficulties.

My overall impression of this report is that it is heavy on common sense practical proposals arrived at by listening to the people who are living through these experiences, and light on dogma, speculation and cod-psychology. I hope that it reaches the audience it needs to.

Comments Off on My kith and kin, oh I have sinned

Posted in Uncategorized and tagged contact, kinship carer, London can you wait?, parents. Bookmark the permalink.

suesspiciousminds

Tag Archives: contact

Bit of a c( ) ck up on the old anger management front

Experts and fairness

“Welfare of the child : Parental involvement”

Applying for contact AFTER a child is adopted

Scissorhands versus Scissorhands

Family preservation versus child rescue

I wish I was Special, you’re so very Special (Guardians)

We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

My kith and kin, oh I have sinned

Follow Blog via Email

Nonsense, family law, sarcasm. Not always in equal proportions

Recent Posts

Follow me on Twitter

Archives

Top Posts & Pages

Categories

Blogroll