RSS Feed

Tag Archives: experts

What the Court want from experts, and other adventures in judicial ass-whupping

The guidance given by the High Court in Re  IA (A Child: Fact Finding: Welfare: Single Hearing : Experts Reports) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html

This case covers a LOT of interesting stuff, so although the guidance on expert reports is the highlight, there’s other valuable information within it; including a kicking for the Local Authority (the Judge agreeing that a suggestion that the social worker had been ‘sticking the boot in’ was apt and justified), the fact that the High Court don’t like mother’s being referred to as “mom”  (hello everyone in the West Midlands!)  a finding of fact exercise being completed years after the event, some very important judicial comments about what could be reasonably expected of the mother, a reverse-ferret from the professionals and an unexpected outcome.

There are many sections of the judgment where the Judge could easily have prefaced with a  “Now I’m gonna open up a can of whup-ass”

Let’s start with the expert report.

  1. Dr Rylance’s report
  1. The very last matter for comment arises from Dr Rylance’s report. When I sanctioned his instruction in February, it was on the basis that he should “provide a short report on KA’s clinical presentation following the injuries sustained and …interpret blood test results.” Ms Jacobs letter of instruction explicitly referred to the President’s very recent Practice Direction in relation to Experts. She attached a copy to her letter. Although there is no mention of it with the correspondence, Ms Jacobs informs me that Dr Rylance was requested to confine his report within 10 to 12 pages. He apparently said he was content to do so.
  1. When he gave evidence, Dr Rylance confirmed he was aware of the reforms to the way in which experts are now required to report, that they should be succinct, focused and analytical and should avoid recitals of too much history and factual narrative.
  1. Dr Rylance’s report was 35 pages long. There was a reasonably lengthy section comprising the relevant background information (5 pages) extrapolating material from reports of other doctors and the medical records. Dr Rylance then dealt with the following issues – Timeframe for fractures; Possible / likely mechanism/ causation of rib fractures; Possible / likely mechanism / causation of right tibia metaphyseal fractures; Force to cause the fractures of the 4th and 5th ribs laterally; Force to cause metaphyseal fractures. He devoted about 5 pages to the issues of likely reaction at the time of and in the aftermath of injury and to whether or not a non perpetrator would have had awareness. Over the course of 5 pages, he provided advice upon the potential for there to have been a medical explanation for the rib fractures. Dr Rylance then tackled the explanations given by the parents and gave an opinion on plausibility before turning to consider (on page 25) the post mortem blood test results and their significance. He also provided an opinion as to the likely cause of the rib fractures.
  1. None of the foregoing was requested. Those matters did not form any part of his instruction and for the obvious reason that Professor Malcolm had already reported in relation to them.
  1. On page 27 of his report, Dr Rylance turned to consider and answer the specific questions asked of him, referring as he did so to many of his earlier paragraphs, as relevant, and repeating their content.
  1. In the 1980s and 1990s before it became the norm for experts (particularly paediatricians and psychologists) to produce absurdly lengthy reports, courts were routinely confronted with, for example, radiological reports in the form of letters which extended to about a page and a half. Professor Christine Hall at Great Ormond Street Hospitals was masterly in her ability to distil essential information and opinion within an impressively succinct report.
  1. Her contributions to cases of this kind, and she was but one example of the then general trend in radiology, contained all the judge needed to know about the nature of the injury, mechanism, force required, likely acute and sequential symptoms, whether a proffered explanation was consistent with the injury as revealed or not.
  1. Reports of that kind were singularly helpful. The modern way exemplified by Dr Rylance’s over-inclusive and doubtless expensive report is no longer acceptable. Experts must conform to the specifics of what is asked of them rather than, as here, provide something akin to a ‘paediatric overview.’ I struggle to recall a single instance when such expansive and all inclusive analysis has been of real utility in a case of this kind.

In short – keep it short and focussed. And if the Court ask that the expert report is no longer than 10-15 pages, it had better not come in longer than that.

Anyway, the case itself. The mother and father had previously had another child, KA, who died when four months old, and who had had injuries discovered post-mortem. This had happened in 2011, and two years later, no charges had been brought.  As there was no other child at that time, there had been no care proceedings brought.  Thus, when the parents had their second child, IA, there had been no resolution, criminal or civil, as to how KA had died and whether there was any culpability on behalf of the parents.

The father had also had a child EA, and he had received a conviction for fracturing EA’s arm, although he denied that he had done this, he was rather undone by his pre-sentence report where he expressed remorse and contrition for what he had done. He had of course, told his family and the mother, the time-honoured explanation that he hadn’t done it but that his lawyer had told him to plead guilty to get a lighter sentence.  (Naughty criminal lawyers, who always tell people to plead guilty when they are asserting their innocence. Naughty!  /end sarcasm)

The Judge conducted a finding of fact hearing and concluded that the father had caused the injuries to KA and EA.  The Judge also concluded that the injuries to KA had happened at a time when mother was out of the home and father was the sole carer, and that thus mother had had no idea of what had happened and had not failed to protect.

The Local Authority had asserted that mother ought to have separated from the father following KA’s death, and not gone on to have another child with him. The LA had been seeking a plan of adoption, and put their position as baldly as this:-

When the case was opened on Tuesday of last week, the London Borough of Croydon was inviting me to make a care order predicated on a care plan of adoption. It was said that even if the mother was not involved in causing the older child’s injuries and did not know that he had suffered fractures it would nevertheless still not be safe to return the baby to her care. It did not bode well for the mother’s ability to prioritise the child’s needs over her own in the years to come, said Mr Date on behalf of the local authority, that it had taken her two years to come to a position of being able to make concessions in relation to failure to protect.

She separated from the father shortly after the proceedings relating to IA had commenced (this being of course, before any findings were made about the injuries)

This is what the Judge decided about whether mother was culpable in any way in not separating from the father sooner.  (Hint, the Judge doesn’t end up agreeing with the LA)

  1. The circumstances prevailing at the time of and leading up to the period when injury is inflicted are all important. It would be manifestly unjust and inappropriate to look back, with the benefit of hindsight, so as to conclude that a parent had failed to protect because of information which became available him / her after key events occurred.
  1. Thus, in the current context, it becomes crucial to consider what this mother knew or ought to have known by the time that KA came to be injured. There is, in fact, no dispute. She knew only what the father and his loyal family had told her about events involving EA. The mother was led to believe that the father was essentially innocent of wrongdoing, that the broken arm had been caused by EA’s mother and that the father had only pleaded guilty so as to avoid being sent to prison – he’d received advice that imprisonment was altogether more likely if he was convicted after a trial.
  1. The mother described within her written evidence how her relationship with the father began, developed and became secure. He came across as extremely genuine; he respected and treated her well. She relates that in the months leading up to KA’s death, they had laughed a lot; she felt they had a great relationship and thought she had found her ‘soul mate’. She was never shown any violence or aggression. Even when they argued, he did not frighten or worry her. Nor did he ever ‘raise a hand’ to her. The only occasion upon which the mother witnessed the father as aggressive was when, after KA’s death, the father punched her former step father. At that time, as she said, “everything felt very raw.”
  1. Those who knew the father best, namely his family, maintained his version of history. The paternal grandmother struck the mother as someone who would not stand by if she “felt something was not right and would speak her mind.” And yet, when the mother asked her and the father’s sister about his previous relationship with EA’s mother, they supported him, saying it had been turbulent. The mother believed neither the grandmother nor the father’s sister would have been supportive of him if they believed he had done anything wrong.
  1. I do not believe she could be criticised for that which seems to me to be an altogether reasonable assumption, particularly given that the father’s sister has children of her own.
  1. No one opened the mother’s eyes to the realities in relation to EA. She had no access to any of the court papers from the 2007 care proceedings. Nor, indeed, did she know of their existence; and that continued to be the position until the interval between her first and second police interviews in 2011 when there was a conversation with the father in which he had told her about EA’s family proceedings. She had no contact with the probation service because the father’s deliberate ploy was to keep her away from his probation officer. There was no ongoing local authority involvement with the father after the conclusion of the care proceedings in early 2008; and thus no opportunity for the mother to discover the actuality.
  1. It is also relevant that the mother was 21 years old when she met the father and only 22 when KA was born. Should she have asked more questions? I don’t believe it is fair or reasonable to conclude she should. On behalf of the local authority, Mr Date suggests that at the time of KA’s death, the mother’s failure was that she did not recognise the warning signals and too readily accepted the father’s version of past events. I cannot agree, on a dispassionate analysis of the evidence, that those suggestions are apt. There were no warning signals. She was young and very much in love, entitled to trust what she was told by her partner particularly when his behaviour mirrored the notion that he was anything other than a danger to children.
  1. It should be said that the mother, both in her written and oral evidence, has been all too ready to acknowledge that she failed to protect KA. She said that by choosing to get into a relationship with the father, trusting and having a child with him, her son has come to harm. If she had not got into that relationship KA would not have been harmed; and therefore, she said, she has failed her child. As a mother she wanted to do everything she could to protect him so she feels she let her first son down.
  1. I have no doubt as to the mother’s sincerity. She was an extraordinarily impressive, transparently honest witness, revealing the depth of her sorrow time and time again throughout her evidence.
  1. That said, I do not believe she should be as hard on herself as she has been. Standing back as I do, weighing information from all sides, there is in truth nothing to substantiate the claims that the mother should have acted differently, has failed to respond to a developing situation in which the child was placed at risk or otherwise should be seen as blameworthy for what happened to KA. Put shortly and more simply, the mother did nothing wrong. She is not to be viewed as a parent who has failed to protect her son. She is blameless in relation to him.

That is a pretty full exoneration.

The Judge then gives some useful comments about the process by which a parent arrives at a decision to separate from a partner who would be viewed as being dangerous, and applies that process to the facts of the mother’s case. (I have underlined a passage which I think those representing parents may find particularly useful, and which given that we still don’t know how fact-finding cases are going to fit into the PLO seems to me very important. I expect to see it cropping up in position statements quite often)

  1. It is often and wisely said that the enlightenment process for the non abusing parent, particularly those who are not found responsible in any way for what occurred, should properly be seen as ‘a journey.’ It is expecting far too much, indeed it borders on the surreal, to suggest that more or less immediately in the aftermath of whatever defining incident, the innocent and truly ignorant parent should shun the other, depart the relationship and make definitive judgments for herself as to what has occurred.
  1. Here, as the mother movingly relates, it is very difficult to describe what it is like to lose a child. It was for her an “extremely lonely and alienating experience.” “Everyone around her had known her child had died but no one knew what to say.” She had “felt angry and upset that (her own) and KA’s privacy had been invaded when everyone came to watch the air ambulance landing in the local school so that he could be taken to hospital.” People, said the mother, “had not felt able to ask her how she was or how she was feeling.” She became aware she “was making people feel awkward just by being there and being sad.” She had stopped wanting to go out, wore sunglasses if she did to avoid eye contact and “pretended she was invisible.”
  1. The mother explained that she felt the father was really the only one who understood how she was feeling as he was going through the same thing. It had made her unite with him more and she was in no emotional state to start contemplating that he could have been the one who hurt KA.
  1. She goes on to describe how, after KA’s funeral in September 2011, the intensity of the police investigation died down as did her conversations with the father about what had happened to their son. She knew there “remained a huge question mark which (she) would have to confront. However the weeks and months drifted on and (they) continued in a state of limbo.” No one had been asking her to think about what had happened to KA and she “supposed it was easier for (her) to cope with trying to grieve if she did not ask those questions” herself. For about a year the mother, was taking anti depressants and “just about coping.”
  1. When soon after July 2012, she discovered she was pregnant, the mother had mixed feelings, knowing there was every likelihood she would not be given the chance to care for another baby whilst KA’s death was being investigated. She said in evidence she had contemplated an abortion. She had not wanted to bring a child into the world in such unsettled circumstances but she “could not do it – lose one child and then get rid of another.” But she had been “very, very scared.” She added she had “brought her second son into the world, he had been separated from her which was not the normal way.” She feels guilty about letting her first son down and that “will never go away.”
  1. I cannot find the mother culpable or deficient in relation to what she has done or omitted to do since KA died. Reading her statements, listening to her evidence, I was profoundly impressed by her ability to describe her feelings. Nothing she described seemed to me to be anything other than the entirely understandable reactions of a bereaved and grieving mother. Her reactions to a rapidly developing situation after proceedings were begun in February this year, to my mind, were entirely reasonable. I find it impossible to be critical of her responses and choices living through events, as they have unfolded, since KA’s death.
  1. It is noteworthy that, hitherto, most parents in this mother’s situation, have had the opportunity to participate at a two-stage care process – fact-finding followed some weeks, even months, later by welfare determination. Because from the child’s perspective it was vital so to do, those who were found to have failed to protect have been afforded the opportunity for reflection upon the judgment. There was then the potential for establishing whether there were signs of acknowledgment, sufficient to embark upon a process of rehabilitation. In this instance, there has been no such relaxed opportunity – responses were required in advance of fact finding in order to prepare welfare plans.
  1. The impact of the consolidated hearing is that this mother, according to the way in which the local authority puts its case, has been expected to work out causation for herself in advance of the evidence being given, respond accordingly and defend her conduct as far back as August 2011. She is castigated for failing to separate from the father immediately after IA’s birth. Those expectations, to my mind, are profoundly unjust. They elevate what might be expected of a parent into the realms of professional reaction; a professional moreover seized of all relevant information.
  1. All the signs are that the mother is not only capable of protecting IA, she is alert to the reality which is that she finds herself now in more or less the same situation as a first time mother. She described how KA’s death had left her anxious as does the fact that hitherto she has not been IA’s main carer. So she is worried about him settling and grateful to know that the support of her own mother will be right there.

The LA at the start of the case had been seeking the findings, and a plan of adoption. The Guardian had been asking for an assessment of the maternal grandmother, who was putting herself forward as either an alternative carer or as someone who could live with the mother.

After the grandmother gave evidence, the Local Authority had a change of heart

  1. At the conclusion of the grandmother’s evidence, Mr Date announced that the local authority had been “hugely impressed” by her; and that he would no longer be asking me to endorse a care plan for adoption. There was agreement from the local authority that the child should be placed together with his mother in the grandmother’s home. Over the weekend, that plan has crystallised to this – that a residence order should be made either to the maternal grandmother alone or jointly with the mother; and there should be a supervision order for 12 months in favour of a specified local authority in the West Midlands.
  1. In similar vein, when Ms Dinnall (the Guardian) went into the witness box on Friday, she relinquished her recommendation for further assessment, lending support to the suggestion that the child should be looked after by his grandmother and mother together under the auspices of a supervision order.
  1. I have struggled to recall an instance where there have been quite such dramatic changes of position amongst the professionals; and whilst from the family’s perspective (particularly the mother’s and grandmother’s) those shifts were so very welcome, it must also be said that in the weeks leading up to this hearing there have been serious errors of judgment in the care planning exercise.

It is no great surprise that the Court endorsed the plan that mother and grandmother should care for IA jointly.

The next passages deal with the judicial criticism of the LA’s conduct of the case.  The social worker is named in these passages – I don’t know the social worker in question and can’t comment as to whether these criticisms apply across the board or just to this case, but she certainly takes a hell of a kicking.

I report these not just for schadenfreude, but because it touches on issues of expertise and the intention in the PLO of social workers being treated as experts. In order for that to work, the quality of work has to be substantially better than this.  Underlining again mine for emphasis.

  1. 94.   Case handling by the local authority
  1. Turning from the issues for decision to other matters, I cannot leave this case without commenting upon the way in which it has been handled by the local authority.
  1. I take account, of course, of the considerable difficulties drawn to my attention by Mr Date in his final submissions – that the social services department is “an unhappy place;” that Ms Kanii, who had no handover from the previous worker has only been in post for six weeks; that there has been a change of team manager during that time and changes of personnel as well within the legal department. Mr Date accepts that the work of assessment undertaken by Ms Kanii was not as thorough as it should have been and the conclusions reached were incorrect.
  1. All of that said, I should have been in the position of being able to place reliance upon the social work assessment so as to reach proper welfare determinations for IA. I should have had fair, balanced and proportionate advice resulting from a thorough inquiry undertaken over the five months or so since the proceedings were begun in February. I should have been able to view the social workers as experts in relation to the child’s welfare and to repose trust in their decision making.
  1. As it is, I am bound to say that Ms Kanii’s work was of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system. I mention just three – first that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625); second, that the local authority’s duty should be to support and eventually reunite the family unless the risks are so high that the child’s welfare requires alternative provision (Re C and B (Care Order; Future Harm) [2001] 1FLR 611); and third that orders ratifying a care plan for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).
  1. The mother’s second statement refers to the difficulty she encountered in speaking with Ms Kanii. She said she found her “quite intimidating” and she gained the “impression she had formed her opinions before really speaking with (her)”.
  1. I found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.
  1. In relation to the mother, Ms Kanii said it is “her view that she cannot care for IA. She lacks insight into significant harm. She would fail to protect the baby. She would not be able to prioritise his needs over her own.” Ms Kanii went on to say that the mother would “struggle to prioritise the child’s needs because fundamentally she does not grasp the significance of harm and how that would impact a child.”
  1. As for the maternal grandmother, Ms Kanii’s overall position was that although the grandmother “came across as quite willing, she was not able to prioritise the needs of the child over those of her daughter.”
  1. Challenged in cross examination by Miss Rayson and Miss King, and very properly so, Ms Kanii was essentially unmoved. Her only concession was that in the event the father was found to be the perpetrator then she favoured some further assessment of the maternal family. Although Ms Kanii denied she had “put the boot in” whenever the opportunity to do so had arisen, I’m impelled to say that Miss Rayson’s suggestion was both apt and justified.
  1. Ms Kanii’s written statement and addendum viability assessments, it has to be said, were perfunctory, lacking in balance and indefensibly critical of the mother and grandmother. I was left bemused that such adverse judgments had been made of the mother in particular when the content of her written statements had given me such cause for optimism. My sense was that Ms Kanii could not have read and assimilated the mother’s statements and yet she said she had. More bewildering still was the thought that the mother must have presented very similarly in discussion with Ms Kanii to the way in which she reacted in the witness box. And yet, such harsh judgments were made. It seems to me that Ms Kanii was operating in a parallel universe, intent on securing a placement order whatever the strengths within the natural family.
  1. Finally, in relation to this, two things should be said. First, I strongly believe – though cannot know – that Mr Date as the head of the local authority’s team intervened during the course of last week so as to retrieve an increasingly hopeless situation. If I am right about that, then I would wish to express my gratitude to him or to whichever individual it was who reconfigured the local authority’s position.

All in all, I think an important and illuminating case, and one which I expect to see cropping up from time to time. The importance of social workers evidence being balanced and not merely advocating for the desired course of action they recommend is vital, if care proceedings are to be fairly determined.

Passing the prior authority parcel

I’ve talked before about the new decision of the LSC to not grant prior authority for cases any more, and why that is actually worse that the already awful situation we had pre October   (as they won’t now tell anyone what they consider to be a reasonable amount of hours for the assessment, and there’s no mechanism for finding that out before the costs are refused, we are all in the dark)

I’ve been sent this proposal via ALC  – Association of Lawyers for Children   (and will print it in full – I commend them for trying to tackle the problem, but there’s no way in hell anyone representing my Local Authority will be instructed to agree to an order in those terms.  I don’t blame the ALC for advising their members that they can’t put themselves on the financial hook for the shortfall in fees, and I understand that they don’t want the proceedings delayed whilst we work out what the hell to do with the expert, but there’s no way that I am agreeing for my authority to be on that financial hook because the LSC have difficulties in arranging a beverage-consuming party in a beverage-manufacturing facility)

Anyway, without further ado – here’s the ALC’s letter and proposal. Perhaps the LA in your area are more flush, or kinder than I am. (The former certainly not, the latter, possibly)

As members will be aware from the LSC’s announcement on its website headed “Prior authorities for civil experts – revision to processing”, posted 30th August 2012, the LSC are no longer willing to concern themselves, in considering the grant of prior authority, with the number of hours work to be carried out by an expert, unless the number of hours requested is “unusually large”.  Since the MoJ/LSC decline, pending completion of research they are presently engaged upon, to formulate what constitutes a usual number of hours, it is probable that, in practice, they will decline to deal with most, if not all requests regarding approval for number of hours.  These will be at risk, in effect, and the standard letter clause approved by the ALC and other representative bodies indeed covers that.

Almost all prior authority requests are accordingly only to be made now in respect of hourly rates (where necessary, having regard to relevant SI schedule and criteria).

Further discussions are being held between representative bodies and the LSC on 8th October 2012, in an attempt to speed up the process of obtaining clarity as to what are considered to be appropriate numbers of hours, and filling in the blanks as to hourly rates for various expertises.   However, the MoJ has already indicated that it prefers to deal with amendments by way of statutory instrument, rather than guidance, and it may well be the spring of 2013 before we have any clearer picture.

We continue to hear of cases in which the LSC take an inordinate amount of time to process applications for prior authority for experts to be instructed at a rate higher than the standard rate, so that the prior authority is not available for a hearing at which it is intended to obtain authority to instruct,  or decline altogether to grant such authority, despite solicitors having used the guidance and recited the terms set out by the President at paragraph 54 of his judgment in A Local Authority v DS,DI,DS, 31st May 2012,  [2012]EWHC 1442 (Fam).

In such circumstances it is important for practitioners to bear in mind that their firms are at risk in respect of any excess fees.

It is clearly unsafe  to agree to instruct, or be a party to instruction of an expert at an hourly rate which exceeds the standard rate for the expert, unless and until prior authority is in place for that hourly rate, and you have seen a copy.   If you proceed nevertheless, you risk making your firm liable for the relevant proportion of the shortfall between the hourly rate you are agreeing to, and the standard rate, multiplied by the relevant proportion of the hours worked by the expert.  This could be quite a lot of money   – e.g. agreeing in advance to a half share of a psychological report involving 25 hours work and an excess fee of £33 per hour [150 instead of 117 e.g.] could cost your firm over £400.

It seems that at present we can expect little assistance from the judiciary in rectifying matters after the event. The standard position of any hard pressed local authority will be that they are unwilling to pick up the difference and will resist an order being made on the basis that “all this ought to have been sorted out before by the respondent’s solicitors”.

The only safe way, we think, for members to protect their firms is to decline to proceed with the instruction of an expert until prior authority has either been granted, or refused by the LSC.

Of course this means delay.  It is almost certainly going to be inimical to the interests of the child and also of any parent/relative for whom we act.

However, we cannot help it if the government on the one hand wants everyone to cooperate in speeding up proceedings, but on the other will not permit the LSC to operate a system which assists in that process.  Judges need to understand the problem, and to realise that, until the issue is sorted out by the MoJ/LSC, they really have no choice but to adjourn the issue of instruction of that expert until the prior authority is through. The case of A Local Authority v DS,DI,DS cannot be relied upon to protect the solicitors for publicly funded parties.   Further, if prior authority is refused, courts  will then have to deal with how the shortfall is to be met, provisionally at least.   It will help if you draw to the court’s attention that the court’s own case management information system, in place now for some 6 months or so, known as CMS, specifically includes, as a reason which can be entered on the system to explain the need for an adjournment,  “Prior authority from LSC not available” – this is in the section of the CMS record headed “Case Management”.

You may want to use/adapt the following template (drafted earlier this week) for cases where prior authority has been refused, but the instruction of the expert must, in the parties’ interest nevertheless go ahead if at all possible, and so must be underwritten by the local authority – it includes the possibility that, at the conclusion of the case, the LSC will in fact pay the fee either at the requested hourly rate or at an intermediate rate:

[by way of recital]  “The court being advised that the Legal Services Commission has declined to give prior authority for the instruction of []  at the hourly rate referred to, and approved by the court in the order of [] dated [] at paragraph []

[by way of order]    “In respect of the fees of [] for preparation of reports in these proceedings, attendance at any experts’ meeting and attendance at court to give oral evidence the local authority shall, in respect of the []shares directed to be paid by the Respondents under their public funding certificates, pay to each of the Respondent’s solicitors a sum equivalent to the number of hours work attributable to their []share multiplied by £[],  [“the local authority’s excess contribution”].  These payments shall fall due upon delivery of the relevant fee notes, so as to enable the Respondents’ solicitors to make payments on account to the expert.   In the event that the Legal Services Commission assesses the experts fees, following conclusion of the case, at the hourly rates approved by the court in its order of [], or at a rate higher than the hourly rates set out in the Community Legal Service (Funding)(Amendment No 2) Order 2011, then the Respondents’ solicitors shall forthwith repay to the local authority’s solicitors the local authority’s excess contribution or the appropriate rateable proportion.”

We consider the present position to be deeply unsatisfactory, but pending clarification through judicial review or otherwise,  we need to draw members’ attention to the need to stand firm on this issue – most practitioners’ margins have been squeezed quite enough this year without the need to expose themselves to these risks.

Alan Bean and Martha Cover
Co-Chairs

finally, something to get our teeth into

The Government have published their proposed legislation to bring about the Family Justice Review.  It’s a lot shorter than one would envisage.

 

You can find it here

 

http://www.official-documents.gov.uk/document/cm84/8437/8437.pdf

 

 

 

I won’t deal with the private law aspects, since my interest is in the public law side of things.

 

 

Here are the major headlines :-

 

 

An importation of a test of it ‘being necessary to assist the Court to resolve the matter justly’ before commissioning an expert assessment, and some factors to take into account

 

 

 

The factors are:-

(a) any impact which giving permission would be likely to have on the

welfare of the children concerned, including in the case of permission

as mentioned in subsection (3) any impact which any examination or

other assessment would be likely to have on the welfare of the child

who would be examined or otherwise assessed,

(b) the issues to which the expert evidence would relate,

(c) the questions which the court would require the expert to answer,

(d) what other expert evidence is available (whether obtained before or

after the start of proceedings),

 (e) whether evidence could be given by another person on the matters on

which the expert would give evidence,

(f) the impact which giving permission would be likely to have on the

timetable, duration and conduct of the proceedings,

(g) the cost of the expert evidence, and

(h) any matters prescribed by Family Procedure Rules.

 

 

 

 

 

 

 

 

Time limits

 

We all knew this was coming.  They have tagged it into the original section 32 of the Act  (yes, that section 32 that everyone talks about all the time and that is at the forefront of everyone’s mind when doing care proceedings. To save you scrabbling for the Act, it is the Court’s duty to set a timetable to determine the case)

 

Here’s what the new provisions say :-

Amend s32 to include

 

 In subsection (1)(a) (timetable to dispose of application without delay) for

.application without delay; and. substitute .application.

(i) without delay, and

(ii) in any event within twenty-six weeks beginning with

the day on which the application was issued; and..

 

So that’s the hard cap, of twenty-six weeks – we then get into the fudging of that hard cap (to mix metaphors terribly)

 

 

Section 4.(3)

 

(Insert in section 32 of the Act, section 32(2) )

 

S32 (3) A court, when drawing up a timetable under subsection (1)(a), must in

particular have regard to.

(a) the impact which the timetable would have on the welfare of the

child to whom the application relates; and

(b) the impact which the timetable would have on the conduct of

the proceedings.

 

S32 (4) A court, when revising a timetable drawn up under subsection (1)(a) or

when making any decision which may give rise to a need to revise such

a timetable (which does not include a decision under subsection (5)),

must in particular have regard to.

 

(a) the impact which any revision would have on the welfare of the

child to whom the application relates; and

 

(b) the impact which any revision would have on the duration and

conduct of the proceedings.

 

S32 (5) A court in which an application under this Part is proceeding may

extend the period that is for the time being allowed under subsection

(1)(a)(ii) in the case of the application, but may do so only if the court

considers that the extension is necessary to enable the court to resolve

the proceedings justly.

 

S32 (6) When deciding whether to grant an extension under subsection (5), a

court is to take account of the following guidance: extensions are not to

be granted routinely, but are to be seen as exceptional and as requiring

specific justification.

 

S32 (7) Each separate extension under subsection (5) is to end no more than

eight weeks after the later of.

(a) the end of the period being extended; and

 

(b) the end of the day on which the extension is granted.

 

S32 (8) The Lord Chancellor may by regulations amend subsection (1)(a)(ii), or

the opening words of subsection (7), for the purpose of varying the

period for the time being specified in that provision.

 

 

 

 

 

 

 

(9) Rules of court may provide that a court.

(a) when deciding whether to exercise the power under subsection

(5), or

 

(b) when deciding how to exercise that power,

must, or may or may not, have regard to matters specified in the rules,

or must take account of any guidance set out in the rules..

(4) In subsection (1) (court.s duty, in the light of rules made by virtue of subsection

(2), to draw up timetable and give directions to implement it).

(a) for .hearing an application for an order under this Part. substitute .in

which an application for an order under this Part is proceeding., and

(b) for .rules made by virtue of subsection (2)). substitute .provision in

rules of court that is of the kind mentioned in subsection (2)(a) or (b))..

 

 

That’s less clear than one would hope, so I’ll break it down.

 

  • When setting a timetable, the Court is now obliged by statute to consider the impact on the welfare of the child and the impact on the proceedings of that timetable.  [They don’t deal with the elephant in the room that sometimes the article 6 right for the proceedings to be fair may clash with the welfare of the child for the decision to be taken in a timely fashion, but ho-hum]  

 

  • If the Court has to revise that timetable, they need to take into account the impact of that revision on the welfare of the child and the impact on the proceedings

 

  • The Court has the power to go beyond 26 weeks, but only if the extension is necessary to enable the Court to resolve the proceedings justly.   [This is the barn doors being flung wide and truly open, and is pretty much how we justify delay now by labelling it ‘constructive delay’]

 

  • Best try and close those barn doors, before all the horses get out, so if the Court is going beyond 26 weeks,  the Court must be aware that such extensions are not to be granted routinely but are to be seen as exceptional  and requiring specific justification       [Oh, we took off the barn doors, but it’s okay, because we have replaced them with doors made out of tissue paper, hooray!]

 

  • Each extension can only last 8 weeks, but the Court can make as many as are required, provided that the criteria for granting an extension are made out. [We’ve got more tissue-paper barn doors in the back, don’t worry]

 

  • The Lord Chancellor can revise the wording of s32 (1) (a) or the new s32(7) – which are the ‘it’s 26 weeks’ and ‘each separate extension is no more than 8 weeks’  and can amend these by Regulations.    [Hey, just in case you were planning to misuse those tissue paper doors, the Government is going to bring in more horrible regulations to stop you if the average case length doesn’t come down to something like 26 weeks]

 

  • And we can set Rules as to how the Court must make the decision about granting adjournments, in case you’re misusing them and applying them to nearly all cases, as the Court will inevitably be invited to do.

 

 

I think this is pretty much what I suspected it would be, having been to the Mr Justice Ryder roadshow  – the judiciary had persuaded the Government to allow them to have discretion rather than a fixed hard cap, and the Government had allowed them that discretion, but made it plain that such discretion will be taken away from the judiciary by new Regs and Rules if it is misused.

 

I’m really struggling to see how any individual case being dealt with by the Court of Appeal where an adjournment is being sought for something that would currently be granted and is refused by Judges applying this new s32 will not be overturned.  Yes, looking at the vast sea of cases as a whole, the Court of Appeal will think that it is right that they are all dealt with expeditiously, but in this particular case, the delay is justifiable.

 

In short, I don’t think there is enough meat on the bones to show why the Court would be right to refuse an adjournment in this case and right to allow it in this other case.  Until we get some solid guidance from the Court of Appeal, there will just be a horrific log-jam of cases where adjournments are sought, refused and challenged (or allowed for fear of an appeal which would delay things further than the actual planned delay)

 

I see no other outcome from this than the Government looking at the stats after the new Act comes into force and saying “right, well you’re nowhere near 26 weeks, so that judicial discretion you wanted is going to have to be taken away, or locked down really tightly”

 

The guidance is interesting on the factors that might justify extension, and are far far far more limited than a reading of the legislation would suggest   

 

51.The factors which may be relevant when the court is considering whether to extend time beyond 26 weeks or beyond the end of a previous extension may include, for example, the disability or other impairment of a person involved in the proceedings, if that means that their involvement in the case requires more time than it otherwise would, or external factors beyond the court’s control, such as parallel criminal proceedings.

 

Interim Care Orders and Interim Supervision Orders to last as long as needed

 

As a Local Authority lawyer, the renewal of ICOs and ISOs in long-running proceedings where they are not being challenged is a dull and pointless process, and I’m glad they’re being got rid of; but losing the tool of ‘short order, until the matter can be litigated’ might be more problematic than the legislators realised.

 

I can also see that with the idea of a 26 week cap, contested ICOs will probably become more prevalent  (you need to have the child in your care at week 26 to have a good chance of a positive outcome since the Court won’t be granting adjournments and extensions to allow for a phased rehab or further work, hence it becomes much more critical where the child is at that 26 week cut-off)

 

 

Get your nose out of the care plan

 

 

The Court now has to look at the ‘permanence provisions’ of the care plan  (whether the child will live with parents, relatives or elsewhere) but nothing else.  But the legislation is worded that the Court is no longer required to consider the remainder of the care plan, and it seems to me that this is not likely to be sufficient to stop Judges who have become well-accustomed to inspecting, dissecting and tinkering with the fine detail of care plans, and counsel who wish them to do so, from abandoning that practice.   It’s a bit peculiar that the ‘permanence provisions’ don’t specifically include contact, but as they say ‘the long term plan for the upbringing of the child’  it is probably wide enough to include anything the Judge wants to take an interest in.

 

 

I think, on the whole, I rather prefer John Hemming’s proposals for reforms.

The problem of the hanged man

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

Follow

Get every new post delivered to your Inbox.

Join 2,803 other followers