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Sauce for geese

 You may recall that I have raged, raged against the dying of the night, about the imposition of Court fees for care proceedings before.

This was something that Lord Laming recommended should be scrapped, that the Plowden report recommended should be scrapped, that the Family Justice Review recommended should be scrapped, and successive governments kicked it into the long grass before finally mumbling, looking shiftily at their feet that they weren’t going to do anything to change those fees.

Still, we now know that care proceedings are going to be done in half the time, and with less court hearings. And we also know that the Government consider that as a result of the reduction in time and effort that will involve, that lawyers fees should be cut by 10%.

So, on the basis of what is sauce for the goose is sauce for the gander, I have been eagerly awaiting the Government’s announcement that fees for care proceedings will be reduced – they involve far less court time and are going to be done in half the time, after all.

Heh.

http://www.legislation.gov.uk/uksi/2013/1407/schedule/made

The fee for issuing care proceedings changes from £2,225 now, TO £3,320.

The fee for having a final hearing in care proceedings changes from £1,900 now TO £2,155.

Hmmm, okay, I guess the Ministry of Justice have to take into account inflation, so that justifies a forty-four percent increase in the fee for issuing.

We didn’t even get our half-assed fake consultation this time around, just the fees jacked up by over a grand a time, with no explanation or rationale.

Private law isn’t excused either, the fee for contact/residence gets jacked up from £175 to £215, just at the time that parents have lost the lawyer that would have guided them through the impenetrable thicket of the fee exemption process.

Quite uncanny that the last time we got a Public Law Outline that ramped up the demands on Local Authorities before proceedings were issued, we got a huge fee increase, and the same thing is happening this time to.

But just like last time, you would be a fool and communist to think that the Government has tried to implement a double-whammy of things that might artificially depress the number of care proceedings being issued.

 

Yours,

 

A fool and a communist

“Tales of the Un-experted” (sorry)

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

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

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

 

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

 

 

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

 

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

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

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

 

“The horse DEFINITELY goes at the BACK of the cart”

Without further comment, the important part of the speech that the President gave on the process of reform  [the whole speech is good, actually, and is short]

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/pfd-update-process-of-reform.pdf

 

 

26 weeks

A comparatively small number of exceptional cases apart, we can and must meet the 26 week limit. We can, because various pilots and initiatives are not merely showing us that it can be done but, even more important, showing us how it can be done. We must, because if we do not, government and society will finally lose patience with us. I believe it can be done and I am determined to do everything in my power to make sure that it is. My message is clear and uncompromising: this deadline can be met, it must be met, it will be met. And remember, 26 weeks is a deadline, not a target; it is a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks

 

[Okay, I lied about no further comment – three cheeky bits. One, this is the umpteenth hint I have seen dropped about it being likely that the Government will take the whole family justice system away from judges and lawyers if we don’t hit 26 week deadlines.  And two – the Children and Families Bill hits committee stage today, which is the first time that any of it has been looked at in any detail at all. It isn't law yet.

 And finally of course, the President can introduce, if he wishes, a Practice Direction saying that the PLO timescale is to be slid down from 40 weeks to 26 weeks, and then it will be LAW that is to be followed, rather than nod and a wink POLICY]

Eagle-eyed Action Plan – now with kung-fu grip

 

The Family Justice Board have published their Action Plan for implementing the proposals of the Family Justice Review. It is a scorching, searing rollercoaster (TM)  of an Action Plan, blending as it does dizzying arrays of key performance indicators, tiresome management-speak, gobbledegook and claims that things have already been ‘actioned’ that come as a complete shock to those who are working in the field and have seen no such things being even contemplated, never mind “actioned”.

 

As a summary of it (and for God’s sake, don’t read the whole thing, it is deathly dull – and I say that as a lawyer, and thus someone who has a pretty high tolerance for dull stuff, I had to read land law and stuff about trusts to pass exams, and one might scathingly add, my idea of fun is to write law blogs)   you can’t do better than John Bolch’s article on Family Lore.

 

 

http://www.familylore.co.uk/2013/01/family-justice-board-action-plan.html

 

 

That’s really it in a nutshell, but if you’re the sort of busy high-pressure, multi-tasking, Type A personality sort  (you know, the ones who the idea of a cereal bar sounds like a good way to combine eating breakfast with walking or travelling so as to not waste five minutes eating some Coco Pops),  who laughs in the face of nutshells and wants something altogether shorter, here goes :-

 

 

They will still be having meetings about “stuff” all the way through 2014 and won’t really be doing anything until 2015  (and the “stuff” they are finally getting round to  doing in 2015 all sounds to be PR and focus-group nonsense)

this may be the most 'shocked' action man i have ever seen

 

Semantics, pedantics and Neuro-mantics

A discussion of the  fascinating “Blinded by neuroscience – social policy, the family and the infant brain”  paper by David Wastell and Sue White

I was sent this compelling and interesting paper by a colleague, and it makes an interesting companion piece to the official family justice research paper on neglect, which I blogged about here :-

http://suesspiciousminds.com/2012/11/05/taking-neglect-seriously/

The paper can be found here :  -    (you need to click on the PDF to read it, but it is free)

http://www.ingentaconnect.com/content/tpp/frs/2012/00000001/00000003/art00008?token=005015070f39b6e58654624315142576b7921766b3c252e5e4e2663433b393f6a333f256698c60b5

Now, why this is interesting generally, rather than just specifically because it is an interesting paper, is because the authors are positing that the Government is about to go in a direction based on scientific research that neglect :-

(a)   causes much more long-standing damage on children than previously understood

(b)   that poor quality of care in the early years of a child’s life causes damage to the structure of the brain which is hard to overcome

(c)   and that as a result, earlier intervention, and where necessary removal is the way to tackle this

And of course, the very first piece of research published by the Family Justice Review team is on these very issues, and although it doesn’t advance as far as (c) explicitly, it certainly comes up to the shoreline and says that speed of decision making is critical and that children under two can’t wait for decisions. It certainly endorses unequivocally the viewpoint that science has demonstrated (a) and (b)

What this article does, is question the scientific studies and research that lead to (a) and (b) and suggests that a careful analysis of the source material suggests that it is not so concrete as the FJR research suggests. And if (a) and (b) are not solid foundations, moving to (c) as the public policy seems to be doing at present may be even more risky than it appears.

[As a sidebar, this argument of if (a) and (b) are right, is (c) right, reminds me of Lewis Carroll's dialogue between Achilles and the Tortoise, and you can find that here, and shows that you simply can't prove anything at all with logic, if you are arguing with a smart-arse :-   ]

http://www.ditext.com/carroll/tortoise.html

achilles

In detail, the authors of this paper suggest that the thinking the Government are working on, that the infant brain is readily susceptible to permanent and irreversible damage from poor care, is wrong and that the truth is rather that the infant brain is resilient and has a plasticity  (by which they mean it is flexible and can adjust and will recover from early delays)

Initial caveat  -  I was concerned by the strident tone of this paper, and I was also concerned that neither of the authors (eminent and smart as they obviously are) are actually neuroscientists.   [That will teach me to judge by the titles that people give at the end, have been contacted by one of the authors, who very politely tells me that he is indeed a neuroscientist - ignore every other time I say that in the piece]

I would be terribly interested to learn whether this is a genuine schism in the field of neuroscience as it relates to children, neglect and brain development in infants, or whether one side or the other is cherrypicking data and quotes.  I simply don’t know. I’m not a neuroscientist, and though I can make sense of what is said by both sides, I am in no position to weigh up who is right.

Having critiqued the strident tone, I suppose that if the authors are right, and the Government is about to lurch into a public policy on neglect, child protection and quick adoptions based on ‘hard science’ when what they believe the ‘hard science’ says is wrong, I might be pretty forceful in my tone too.

Let’s have a look at some detail

We argue that the neuroscientific claims supporting current policy initiatives have receivedlittle critical commentary. They appear to be operating as powerful ‘trump cards’ in what is actually very contentious terrain, suppressing vital moral debate regarding the shape of state intervention in the lives of children and families.

 

In this article, we interrogate the nature of the scientific claims made in key documents and the ideological thrust of policy that they have engendered. We examine Allen’s first report in detail first, before developing a more general critique of what Tallis and others have dubbed neuromania: ‘the appeal to the brain, as revealed through the latest science, to explain our behaviour’ (Tallis, 2011: 5; Legrenzi and

Umilta, 2011). Bruer’s (1999) deconstruction of the ‘myth of the first three years’ will feature prominently in our argument, paving the way for a broader critical analysis of the ‘new’ brain science and its influence on policy. We contend that neuroscience is re-presenting an older ideological argument about the role of the state in family life in terms of a biologically privileged worldview. We suggest that there is a great

deal of difference between ‘early intervention’ as defined in the Allen report and what Munro (2011: 69) refers to as ‘early help’, which includes a much wider range of family support activities. Neuromania, we conclude, is the latest of modernity’s juggernauts reifying human relations into ‘technical objects’ to be fixed by the state (Smith, 2002), which always ‘asks nothing better than to intervene’ (Ellul, 1964: 228).

 

 

Strong words there, and the phrase at the end that the State generally seeks reasons to intervene is resonant.  I feel personally that the State has moved much more towards a paternalistic approach to the lives of its citizens and away from a broad principle that people are autonomous and best placed to make decisions for themselves save in very narrow circumstances, and that the law has done the same in recent years.  People’s freedom to make bad, foolish and downright idiotic decisions for themselves has to an extent been eroded.

Criticising Allen’s report, on which a lot of the foundation of the neglect causes irreversible damage in infants is based, the authors say   (their quotes from Allen are in italics)

The importance of secure attachment is invoked:

 

“Children develop in an environment of relationships.… From early infancy, they naturally reach out to create bonds, and they develop best when     caring adults respond in warm, stimulating and consistent ways. This secure attachment with those close to them leads to the development of empathy, trust and well-being. (2011a: 13)”

 

Predictive claims quickly follow regarding the long-term effects of such early attachment patterns, especially the beneficial effects of secure attachment and the dire impact of the failure to cement such bonds:

 

“Recent research also shows insecure attachment is linked to a higher risk for a number of health conditions, including strokes, heart attacks … people with secure attachment show more healthy behaviours such as taking exercise, not smoking, not using substances and alcohol, and driving at ordinary speed.

(2011a: 15)”

 

Two studies are cited as the basis for these ominous claims. But again the evidence cited is perplexing. These are not studies of children, but adults; both use ‘attachment style’ as a way of measuring the adult personality with self-report questionnaires. Neither study shows, nor purports to show, any link between early childhood experiences and

problems later in life. In subsequent paragraphs, damaged emotionality and damaged brains are soon united, and the perpetrator of all this devastation is unflinchingly denounced.

 

Parents are to blame:

 

“Parents who are neglectful or who are drunk, drugged or violent, will have impaired capacity to provide this social and emotional stability, and will create the likelihood that adverse experiences might have a negative impact on their children’s development … the worst and deepest damage is done to children when their brains are being formed during their earliest months

and years. (2011a: 15)”

 

 

If the authors here are right about the studies of attachment and impact on later life, and the flaws that they claim, my faith in the FJR research does wobble.  Again, I am not a neuroscientist, and neither are the authors, but if we are going to be taking the FJR research as agreed research on which the judiciary can base conclusions and decisions, we need to know whether the foundations are solid or built on sand.

Returning to Allen’s report, the following excerpt summarises the final

step of his neurobiological argument:

 

Different parts of the brain develop in different sensitive windows of time. The estimated prime window for emotional development is up to 18 months, by which time the foundation of this has been shaped by the way in which the prime carer interacts with the child…. Infants of severely depressed mothers show reduced left lobe activity (associated with being happy, joyful and interested) and increased right lobe activity (associated with negative feelings).

 

If the predominant early experience is fear and stress, the neurochemical responses to those experiences become the primary architects of the brain.

 

Trauma elevates stress hormones, such as cortisol. One result is significantly fewer synapses. Specialists viewing CAT scans of the brains of abused or neglected children have likened the experience to looking at a black hole.

 

In extreme cases the brains of abused children are significantly smaller than the norm. (Allen, 2011a: 16)

 

Those damaged brains again. For the claim of lasting damage from fear, stress and trauma, Allen cites no specific scientific support. A significant body of work does, however, exist on the possible damage caused by post-traumatic stress disorder, reviewed by Wang and Xiao (2010). Although there is evidence of reduced volume in one brainstem structure (the hippocampus), the seminal research involves war

veterans, not children; follow-up studies have not shown lasting hippocampal damage, and the scant imaging research on children has failed to find such impact. A recent authoritative review (McCrory et al, 2012) comes to much the same conclusion regarding the hippocampus, and another much-mentioned brainstem structure, the amygdala; only under conditions of prolonged rearing in orphanages is diminished

brain size evident (see below).

 

Digging into the specific (frontal) lobe evidence invoked by Allen, he cites a paper by Dawson et al (1994), which reviews psychophysiological studies of the children of depressed mothers. Dawson’s evidence, however, actually goes in the opposite

direction to that claimed in the Allen report. Referring to a study on the reactions of children when mothers left the room: ‘the infants of symptomatic mothers exhibited an unexpected pattern of greater left than right activation during the maternal separation condition’ (Dawson et al, 1994: 772). More ‘positive’ emotion it would seem. In truth, there is a vast gallimauphry of neuroscience research, but little settled knowledge. Evidence for policy making does not simply repose in journals ‘ready to be harvested’ (Greenhalgh and Russell, 2006: 36). Rather, it is ‘rhetorically constructed on the social stage so as to achieve particular ends’ (Greenhalgh and Russell, 2006: 37). This seems an apt enough description of Allen’s modus operandi.

 

Although ‘journal science’ is invoked, he seems not much interested in what it actually says. This is ‘prejudice masquerading as research’ (Furedi, 2001: 155), of science being enrolled to legitimate an a priori ideological position favouring a larger arena for public intervention in the lives of families.

 

(and later)

 

It should now be clear that neuroscientific knowledge is at an early and provisional stage. As Bruer (1999: 98) avers, after more than a century of research we are still ‘closer to the beginning than the end of this quest’.

 

This point was reinforced recently by Belsky and de Haan (2011: 409–10): although the brain ‘packs a punch’ for policy makers, they conclude that ‘the study of parenting and brain development is not even yet in its infancy; it would be more appropriate to conclude that it is still in the

embryonic stage’. Neuroscientists may know the limitations of their research, but such caveats are not what politicians and proselytisers wish to hear;

Again, I am in no position to judge whether what the author’s say of Allen’s report is accurate, fair comment, or a scurrilous attack. I simply don’t know and can’t say.  But what does seem clear to me is that simply ignoring the counter arguments and pressing ahead on the basis that there is clear research with firm conclusions on which future plans can be built is problematic unless that research addresses the criticisms of it head on.

We have much the same problem with the vexed issue of contact levels for infants in care.  I have blogged before about this being presented in the Family Justice Review research as being strong, almost overwhelming views about how high levels of contact are detrimental to infants, and this underpinned entirely the Government consultation on contact, and how there is a contrary view out there and criticism that the research just isn’t robust enough to bear the weight that is being placed upon its branches.  Particularly Dr Peter Dale’s critique of the original research

[See http://suesspiciousminds.com/2012/09/11/family-preservation-versus-child-rescue/                            ]

Again, I am not a scientist or researcher practising in this field, so I can’t resolve those debates and come to a firm conclusion about who is right. But that may well be the problem – neither are the politicians who are setting the course, or the Judges who will be deciding individual cases.

We need clarity as to whether the science on infant brain development is as claimed in the Family Justice Research, or as claimed here, or whether it is simply too early to tell, likewise with the impact of contact on children.

It also raises broader and deeper questions  – when, as the Family Justice Review intends, we collect research with a view to identifying the current state of play in a particular area and what that means for us, how are we, as lawyers, social workers, judges, politicians, in a position to assess whether that research actually shows what the headlines suggest ?   Do we have to get under the bonnet of the individual studies to realise that what was being tested was NOT the central hypothesis, but some ancillary matters from which large extrapolations are being drawn?

I don’t think it is controversial to say that neglect is harmful to children, but if we are working on the basis that science has proven that neglect is not only harmful to children but that such harm carries on into adult life and that harm caused by neglect in the first two years is irreparable, so decisions have to be made very quickly, then we had better be confident about that proof.

I’m not at all saying that the authors here have overturned the research – they are, as I have emphasised a lot, not neuroscientists. But what they have certainly done is gone up to the duvet and said “are you sure that’s someone asleep under there, rather than just some pillows?”

If you do happen to be a neuroscientist, I’d love to have a discussion about this, though it will need to be taken slowly – I’m strictly an amateur.

I’ll conclude with some wise philosophical words, from Descartes via 1980s Manchester

Does the body rule the mind, or does the mind rule the body? I dunno

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.

New adoption regs . I say we take off, and nuke panel from orbit. It’s the only way to be sure

 

The 

The Adoption Agencies (Panel and Consequential Amendments) Regulations 2012 have just been published.

 

Even as a law geek, these are too dull to read (my pet-hate is legislation that simply consists of ‘remove the word ‘always’ from s271 (1) (b) (iv) of the Act, and replace with ‘under no circumstances whatsover’)

 

The nub of it is, in cases after 1st September 2012, there is no longer a requirement for the LA to present a child’s case to Adoption Panel to get permission to seek a Placement Order from the Court, or to present a care plan of adoption to the Court.  In fact, not only is it no longer a requirement, from 1st September the LA is FORBIDDEN  to place the child before Adoption Panel for that decision.  (This doesn’t apply to cases where a baby is given up for adoption, or relinquished).

 

What’s not terribly clear is whether the cut-off date of 1st September applies to  :-

(a) cases where the Court won’t be actively considering making the ORDER until after 1st September

or

(b) cases where the LA evidence is due before 1st September. 

 

I suspect, in the absence of clear guidance to the contrary, it has to be assumed that (as the LA needed Panel permission to put in a care plan of Adoption, it would be (b).  I suspect the Court might see a massive surge in directions which put the LA evidence due on 1st September or later, even when it could actually come in the week before.

 

If you really want to read the legislation (and I do warn you, that it bored even me, and I have a high tolerance level), here it is :-

 

 http://www.legislation.gov.uk/uksi/2012/1410/made 

Madame Le Guillotine and the law of unintended consequences

I was reading Pink Tape today  http://pinktape.co.uk/family-justice-review/i-suppose-i-should-blog-sommat/  and had a horrible moment of self-recognition. I try to avoid introspection wherever possible, because it allows me to maintain my massive inner belief that with a bit of airbrushing I could look like Brad Pitt, and with a bit of extra prep time, I could use honeyed words to charm the very birds out of the trees just like the silks I most admire, but reality crashed through that today, spoiling my internal sense that all must be right with the world whilst I am still a presence in it.

The thrust of Pink Tape was, there’s no point merely grumbling about the FJR and the 26 weeks that is coming at us like the meeting of minds between the prow of the Titanic and the sharp bit of that iceberg (I don’t know, in this analogy which is the iceberg and which the boat – part of me suspects that the huge power of the system for inertia and ignoring the things we don’t like mean that we may well see off the FJR just as we saw off the Protocol and the PLO and those horrid Practice Directions by just agreeing to pretend they don’t exist), but to speak up, lest we find ourselves pinning up that “First they came for the Jews” quotation on our cubicle walls. (Mine, by the way, are in a delicate shade somewhere between mushroom, and fawn)

So, here is my fourpennorth.

The 26 week period to resolve care proceedings, particularly if it is a cap, or guillotine, rather than an aspiration or target, won’t work. (It wouldn’t work if it was an aspiration or target, EITHER, but for different reasons).

I can’t see it surviving contact with the Court of Appeal, and if it does, I certainly can’t see if surviving contact with the ECHR.

Even if you put a new section in the Children Act 1989, that says “Section 1(2) shall now read “In any proceedings in which any question with respect to the upbringing of a child arises, the Court shall ensure that the case is dealt with within 26 weeks of the proceedings being issued save for exceptional cases” , every single case will just be exceptional.

And if you snip out ‘save for exceptional cases’, then what you have is s1(2) of the Act being potentially in conflict with s1(1). And as s1(1) not only comes first, but says expressly that the child’s welfare is the paramount consideration, that will trump the revised s1(2) .

The Court would HAVE to retain the power to decide that in an individual case, the welfare of the child requires that the proceedings continue a little longer.

And if they have that power, they will use it.

And if they use it on Case A, how is it right to fail to use it on Case B, which is the same factual issue? And what about Case C, which is analogous, or Case D, which is quite a bit like Case C (though nothing at all like Case A)

So, I think insisting on having the sharp-cut off Guillotine regardless of welfare is unlawful even if the law is changed (and there’s a huge difference between a general principle that delay is harmful and should be avoided, and removing the discretion to decide whether the harm of delay is outweighed by the children’s best interests and saying “one size fits all”)

And if it isn’t a sharp-cut off Guillotine, it will just be ignored. Just as the major impact of implementing the 40 week target in the Protocol and the PLO was to move the average duration of cases from BELOW 40 weeks to 25% OVER 40 weeks.

 Now, the law of unintended consequences. I’m fairly sure that the Government don’t intend the revised Family Justice system to result in more children being in care, or more children being subject to Care Orders or there being far more applications to Court to be dealt with, but that’s what the law of unintended consequences is all about. Stuff you didn’t mean to bring about when you did something new and clever, but that happens anyway.

Let’s look at a little example.

“Charlie” is the son of a single mother, father off the scene, no suitable family members. “Charlie” is a newborn baby at the time of issue, and his mother has been a heroin user for ten years. The mother gets legal advice at a Letter Before Action meeting pre-birth, and decides to use her best endeavours to quit heroin. The drug tests are ordered at the first hearing. They arrive (let’s be optimistic) by Week 5. They are clean. Obviously, that only shows that she has been abstinent of heroin for a few weeks, and we need more. So let’s have some more drug tests.

Now, we might get a psychiatric report, or we might have the benefit of the ACCEPTED RESEARCH that Justice Ryder has been mooting. 

 I suspect that  you and I have both read enough psychiatric reports to hazard a guess that either of these things will say :-

(a) Mum has a long-standing problem of heroin use

(b) She says she is committed to being abstinent

(c) She would need to be abstinent in order to care for the child

(d) In judging whether the abstinence will last, a year is a good start, and two years is where you would feel really confident.

 So, mum gets the further drug test, at week 18, that’s clean. She has been abstinent for nearly four months and has evidenced that.

 The Local Authority are about to file their evidence. Everything mum has been asked to do within the proceedings, she has done. She achieved abstinence and maintained it. But the timescales for having confidence about abstinence are still eight months away, and six months beyond the point at which our Family Justice Guillotine says “No, stop now and make a final decision”.

The LA (and the Court) have three possible decisions here, none of them palatable :-

(a) Supervision Order with the child at home, and if the progress doesn’t last, bring the case back to Court, with a brand new application (presumably a brand new 26 weeks) and paying the full Court fee [because the Government rejected that recommendation, made by Laming, Plowden and the FJR that Court fees that mean it costs around £5,000 to seek a Care Order be abolished]

(b) Decide that the mother can’t demonstrate that she can maintain abstinence within the child’s timescales (of course she can’t – because she needs a year, and she’s only allowed six months) and that therefore it has to be adoption. [I can already predict that this option is provoking howls of outrage, and I don’t terribly disagree, but it is an unintended consequence for drugs cases that if you don’t give the Court long enough to conclude that the parent CAN do it, they may have to decide that the parent CAN’T]

(c) Care Order with the child at home, with a care plan that provides for the child to remain at home with mother UNLESS she lapses, in which case the child would be removed and a Placement Order application sought.

 [You may remember, that I said none of them were palatable at the outset]

 Let’s make this a little bit more tricky.

 This time, mother has one lapse, and it comes in the second drug test. So at Week 20, the Court has evidence that she has used heroin once, and once only, during the course of the proceedings.

 Which of those three options do they go for now? What happens if mum needs some medical intervention to achieve abstinence in the first place, so she doesn’t actually become abstinent till Week 12? Which of those three options is the Court supposed to go for?

 In short, in reducing the time for drug or alcohol cases to be determined, has the Government decided to give the benefit of the doubt to the parent, or to take a cautious approach and assume that the parent is more likely than not to relapse during the child’s minority, or to have a fudged position resulting in more children being subject to Care Orders?

That looks to me, whichever way you slice it, to be a political decision, but one that hasn’t been actually made or debated because nobody has realised that this has arisen as a byproduct of deciding that taking less time over care proceedings must be a good thing.

 In deciding that children have to have their future determined by week 26, you inadvertently create a huge problem in those cases which CAN ONLY BE TESTED OVER TIME.    If you don’t test over the time it needs, you are going to either guess wrong or end up with a fudged compromise that massively expands the number of LAC children.

And heaven forbid that if this happens to Charlie in Manchester, it has a different outcome than if it happens to Charlie in Dorset.

Let’s assume it isn’t drugs or alcohol. It is an unsuitable partner. It takes till Week 7 to categorically establish (through a super-quick process of gathering all the information about what an unsuitable person X is, and maybe having a fact-finding hearing about what X did to Charlie. ). Charlie’s parent decides at Week 7 to separate from X. By the time the LA are filing their evidence, Charlie’s parent and X have been separated for three months. By the time of the final hearing, four months.

Is the Court supposed to give the parent the benefit of the doubt there, or assume that the separation won’t last (since they aren’t allowed to extend the hearing to test it) or to have a fudged position whereby the LA have the child at home under a Care Order and a plan that has the child removed if the parent reconciles with X?

Now, what if Charlie’s parent is seen with X at Week 20, and says it was a one-off, a blip? What happens then?

My guess would be, that in a perfect case, where the parent is faultless for the full 26 weeks, the case ends with a Supervision Order. And a significant proportion of those will come back to Court having not worked (as we know now, when parents are tested over a much longer period, a significant proportion of rehabilitations sanctioned by LAs and the Courts break down, and the child suffers further significant harm).

 Thus, the number of proceedings will go up. [Law of unintended consequences]

And in a case where the parent has a blip, and the blip is not really, really early on, Care Order with the fudged (some might say inchoate) care plan of ‘remain at home unless you screw up again, then removal’. So, the number of children who are subject to Care Orders will go up. [Law of unintended consequences]

And in a case where there a couple of blips, which might be ironed out by extending the assessment period (but that’s no longer an option) Care Order and Adoption. So the number of children who are subject to Care Orders and need adoptive placements will go up [Law of unintended consequences]

The cases that won’t have their outcomes affected, of course, are the ones where the parent DOESN’T even TRY to quit heroin, or drugs, or the relationship with X.

But I don’t see any analysis in the FJR or Government’s approach as to what proportion of cases fall into the “Concerns then full engagement” “Concerns with good engagement but blips”  “Concerns, attempts to change but quite a few blips” or  “Concerns that the parent doesn’t engage with at all” categories.

In that case, lacking the key data, how can we really plan?

Anecdotally, I have seen a LOT of cases that looked cast-iron as to the outcomes by week 26 (or even earlier). Some of them go exactly the way you call ‘em. Some don’t. And what’s worse, if you exclude the utterly hopeless cases where there’s no effort to change, you can’t even predict which ones will go the way you called them, and which won’t.

I don’t think the 26 week Guillotine will work. From everything I’ve seen, it will be an attempt to put those electric shock paddles onto the PLO, and have people follow it.  Just moving the majority of work that is done in proceedings onto the shoulders of the LA pre-proceedings. That doesn’t reduce delay, just takes it off the Court’s books, and lets everyone wag a finger at the naughty Local Authority.  As a side-benefit, we can compare Local Authorities and hopefully single out some particularly naughty ones.

Also, as we all found out in the really early days of the PLO, there’s no point the LA spending hours and hours doing assessments if when the case gets to Court the parents immediately ask for a second opinion and the Court grants the request.

Here’s a question about whether there should be a shift in focus which is a political decision, and ought genuinely to be made as a political decision rather than an administrative one.

Where the Court finds that a child has suffered significant harm, ought the focus of the rest of the proceedings be on the parents CURRENT capacity to provide non-harmful parenting for the child, or on the FUTURE capacity?

Because that’s ultimately where the 26 week approach is taking us. And I’m not going to argue here about whether a CURRENT or FUTURE capacity is a better system – that, it seems to me is a broader question for society. I think we currently (despite what the House of Lords/Supreme Court keep saying) have a system that is built around the hope/expectation that the court process can effect a CHANGE in people. And we try to do that without any actual resources that would effect that change. I suspect that those resources won’t be forthcoming.

 If you want a family justice system that helps parents to make the changes they need to be able to care for their children, then you need the TIME and the SUPPORT for those changes to work.

(We currently have a system that spends a fortune arguing about diagnosis and nothing whatsoever on treatment. It’s like sending someone off to a top Harley Street dermatologist for paid-for advice on how best to remove their unsightly tattoo, and after we get that advice and have paid for it and seen what should be done, instead handing the person a sheet of sandpaper – and maybe an aspirin - and telling them to get on with it)

 Do we want to try to keep as many children as possible with parents, or do we want to try to ensure that as few children as possible drift whilst we wait for decisions?  Either is a legitimate aim of a Family Justice system, but it would be nice to decide, before working out the nuts and bolts, what the actual aim is. (Because the fake aim of ‘both’ is just as feeble as those people and politicians who agree that we need to make significant cuts in spending, but not on any areas that would be unpopular. In the words of Billy the Kid  “Speed’s good, son, but accuracy’s final”)

You might need to throw an awful lot of money to have a system that not only aspires to bring about CHANGE in parents, but actually has the ability to realistically do it, but it might equally save an awful lot of money in the long-term. How many neglect cases do we see where one of the root causes of the neglect is the neglectful parenting that the parent themselves received as a child? So, if you fix the parent, you solve problems in the next generation. Problem being, for politicians, solving problems for two or three Parliaments down the line isn’t a vote-winner.

 Rant over.

Not just clean-bowled

I’ll be doing a more detailed analysis of the Government’s decision, when responding to the Family Justice Review, to not adopt the recommendation to abolish Court fees for care proceedings, which went up from £175 per case to around £5000 (if the case goes to final hearing, it is cheaper if it is resolved at Issue Resolution Hearing), but in very broad terms :-

The consultation about the change to fees was rolled out on a Government website on New Year’s Eve  (I like to think Local Government lawyers are hard-working and don’t keep the hours that the general public might stereotypically associate with public sector workers, rightly or wrongly, but even we have better things to do on New Year’s Eve)

The consulation proceeded on the premise that the principle that the full costs of care proceedings to the Court service should be met by Local Authorities. And basically gave a range of choices about whether they wanted to be punched in the stomach, kidneys or face while they were being mugged. There was plenty of talk about how the fee increase wasn’t intended to be a lever to drive down the number of care applications within that consultation. Most LA lawyers who responded to the consultation made exactly the point that there was a risk of it being used that way. The consultation disregarded this.

The numbers of care proceedings issued dropped like a stone (there was the additional complication of the PLO, which got rid of delay in care proceedings (ha!) by front-loading them so that all the delay happened before the case got to Court, so I couldn’t claim that they were responsible for the entireity of the plummet)

Then Baby P came along, the numbers spiked up and have kept doing so, and the Government invited Lord Laming to report, saying that they would accept all his recommendations. He reported, saying that he feared that if even one application that should have been made to Court had not been because of the fees, then they should be scrapped and recommended that a report look into that.

The Plowden review reported and recommended the abolition of Court fees.  The Government didn’t respond to that. In fact, it took a Parliamentary question to get from them that they intended to kick it into the long grass and leave it for whoever won the (at the time imminent) election to resolve.

The new Government kicked it into the long grass, and waited for the Family Justice Review. The interim FJR recommended the abolition of court fees. The full report came, and recommended the total abolition of Court fees in care proceedings. The Government accepted most of the other recommendations (wavering about presumptions of shared parenting) and rejected the abolition of Court fees in care proceedings.

To me, this is a batsman at the crease who is clean bowled, and says he wasn’t ready, then is LBW next ball, and says the sun was in his eyes, and then finally is caught and just stands at the crease, refusing to walk and says “Come on, next ball – I’ve got a good feeling about this innings”

Why does it matter?  Well, it has a huge financial impact on Local Authorities – it would be fair to say that most of them don’t get anywhere close to breaking even from the money Central Government gave for this purpose, and pay out far, far more. But more importantly, it has an impact on parents.

When I started out, I used to issue care proceedings on parents who were in danger of losing their children if they didn’t turn things around – we applied for Supervision Orders and Interim Supervision Orders. And in many cases, being in Court, and having representation, and hearing from a Guardian and a Judge who would explain to the parents that they could be helped to avoid an awful calamity did the trick.  LA’s don’t apply for many Supervision Orders now – despite the spike in the numbers of proceedings, most of the time, LA’s go to Court when they perceive they are at the end of the road with the parents (sometimes we’re right, sometimes we’re wrong, but the mindset is that we are in Court to say ‘we can’t manage this at home any more’).   The application form for Care proceedings has a section on it (before the page where the form asks you the gender of the mother…) where you indicate whether you seek an Interim Care Order or an Interim Supervision Order.  If I had any confidence that HMCS kept stats, that would be a fine Freedom of Information question – the proportion of cases where an LA issues seeking an Interim Supervision Order  (reflecting that it isn’t the end of the road, but a significant junction where a parent can choose a better course)

And the other huge impact that the Government hasn’t thought about, is that if you keep the Court fees as they are, and implement the hard six month cap; you exclude Local Authorities reaching a conclusion in cases where there’s general progress, but a wobble (a parent is abstinent for five months, but has a lapse just before the final hearing for example) to say “Let’s give this a try with a Supervision Order – we can always bring it back to Court”  if giving that benefit of the doubt is going to cost £5000 to get it wrong. Much easier to do it under a Care Order.  Which is fine if the lapse was just a lapse, and no more, but what happens when it is a relapse instead, and rather than having to bring it back to Court and prove it, the Care Order (which remember will come with a much looser care plan than at present) just kicks into force and the child is removed without a hearing?

I rather suspect we might be seeing an increase in the number of Care Orders made at final hearings, as an accidental consequence of a flawed system.

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