My ongoing and ever growing brain-crush on the Honourable Mr Justice Hedley continues apace, in K (Children) 2012 – which can be found here :-
http://www.familylawweek.co.uk/site.aspx?i=ed97030
*(apologies for the title, the story has nothing whatsoever to do with the Daily Mail)
This case is not particularly remarkable for its grappling with complex legal issues or because it resolves a matter of grave national import. The facts of the case are incredibly sad and the matters of huge importance to the family and those working with them, but the case is of interest and significance for the way that the Judge approached matters. I hope that in years from now, we will see this case as one of those times when fish climbed out of the sea with stubby fins onto the land and gulped pure clean air. (Probably not, but I am, despite eighteen years in child protection law, an incurable optimist and a hopeless romantic)
I would urge you to read these short extracts, but effectively, this is exactly what I had in mind when I wrote about an inquisitorial approach (actually well beyond, in the right direction).
The Judge was dealing with a case with three children with profound special needs as a result of their disabilities, and the dispute that the family were having with the Local Authority about services for the children; culminating in the issue of care proceedings and there being considerable conflict in the papers as to where the children should live and whether the threshold was met. It could very easily have been approached as a classic adversarial case and the parties spending two weeks in the High Court tearing one another to pieces and seeing who was limping least at the conclusion of the case.
Instead, a very different approach was adopted.
16. Because all this seemed to me both unusual and difficult, I have gone about its resolution in an unusual manner, albeit with the consent throughout of the parties. The fundamental purpose has been to see if a way forward can be found in partnership, which, as I have said, must happen indefinitely into the future, without the need for a damaging trial over the question of whether the threshold criteria have been satisfied. I regarded this approach as all the more urgent in this case because of the deeply conflictual tone of almost all the statements, not just of the parties towards each other, but of the Local Authority towards some experts and, of course, a letter from Simon suggesting, unsurprisingly no doubt, that he has been drawn up to his ears into this dispute. It is the fact that some two years have passed since a Local Authority social worker was admitted to the house and it is the fact that, until this hearing began, the parents had not spoken to the current social work team. It was a matter of relief that on one matter all parties were agreed. This could not go on and change had to occur. It is also worthy of note that, as a matter of fact, the combined work of the parents and the professionals to date has in fact succeeded in promoting and safeguarding the welfare of the children in very substantial part. Despite the ongoing conflict with the family, the Local Authority social workers have managed to negotiate substantial investment in the family, including procuring the two places at H, and there is no reason to doubt that the parents have secured the children’s emotional welfare throughout.
17. I have pursued this aim by making my provisional views about the case and my suggested possible route to solution much more readily available than would necessarily be right were I hearing an arm’s length trial. I have allowed considerable amounts of court time over the last seven days to be used outside the court room. From those discussions have emerged four agreements: one between the Local Authority and the parents, one between H and the parents, and a tri-partite agreement between them all, and a further agreement between the Local Authority, the parents and the proposed coordinator or case manager in this case. There are two issues of disagreement remaining and all agree that they can be considered in this judgment and then acted on by the parties.
18. Moreover, on the second day of the hearing we adjourned to H, who kindly made their boardroom available to us. During the course of discussions, the parents met constructively with the social work team under the aegis of the guardian, though of course this must only be the start of what needs to be a regular pattern of meetings. I had a chance to see the premises and speak informally with the general manager and the chief executive. I also had the chance to see the family together, of which more in a moment. At the request of the parties, I also went to the special school (F) attended by Alec, Alice and now Zac, and spoke informally with the headteacher and a member of the medical staff. I wish to record my gratitude both to H and F for their tolerant hospitality, and I have written personally to the general manager and the headteacher to express that. In a case in which, as I have said, context is everything, I found this second day particularly valuable. In short, this case, being unique, has received unique treatment.
And here :-
43. I greatly appreciate the effort of all – family, professionals, Local Authority, H, guardian, as well as the legal teams who have given clear advice and have been willing to adopt both an unconventional and a non-confrontational approach, all of which have served to secure this end. I want only finally to say this. Whatever the disputes of the past, this remains an intact family in which the best interests of the children are paramount. I hope this case has given the parents the confidence to continue the task that compels the admiration of all. I hope, too, that in that renewed confidence they will feel less anxious, will feel that they do not always need to be right on everything or in control of every issue, but will learn to trust others and to respect and consider contrary views; in short, that all will come to recognise that that which will unite this family, and H and the Local Authority in the future, is not the written agreements, important though they are, but their shared commitment to promoting the welfare of these children, especially Alec, Alice and Zac, who of course have nowhere else to turn.
Now, all of this may have come in the context of a unique family (I nearly said very unique, but of course that concept is a nonsense), and I note that the school provision for the children is costing £246,000 in 2012 and will increase year by year; and that in those circumstances one can understand that there is more willingness to be flexible and supple and try a different approach, but I really would like to see much more of this.
At the risk of getting into private law, which is no longer my cup of tea, I have thought for some years that an approach in private law where the Judge indicates really early on what a desirable final outcome for the children would be [that they see both parents, spend lots of time with both, know that each parent loves them very much and that whilst they don’t love each other any more, that doesn’t stop mum being mum, and dad being dad, that new relationships for mum or dad don’t change that at all] would be, and directs the parties as to how to get from this awful starting point to that desirable finishing point, is worth considering…. sorry to keep people waiting for that unexciting ending…
suesspiciousminds 