Author Archives: suesspiciousminds

We’re only making plans for Nigel

Posted on April 2, 2012 by suesspiciousminds

 

 

Inherent jurisdiction and vulnerable (yet competent adults)

 

 

 

DL v A Local Authority and Others  [2012] EWCA Civ 253

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

 

 

 

A fascinating case, and one which deserves to be analysed by someone with greater skill and expertise in adult social care law than I possess. But I am interested in it, and felt it was worthy of discussion.

 

It deals fundamentally, with the tension between individual autonomy and protection of vulnerable persons; and of whether there is a bright line to be drawn between when the State can tell a person that they can’t make that decision because it is not in their best interests to do so, and where if so, that bright line is to be drawn.

 

Many people might have thought that the introduction of the Mental Capacity Act 2005 settled that once and for all :-  the State, and ergo the Court, can replace a person’s decision with one that is in their best interests if, and only if:-

 

(i)            they are a minor, when the principles of the Children Act 1989 apply

(ii)          they are suffering from a mental illness or disorder sufficient to justify intervention under the Mental Health Act

(iii)         they lack capacity to make that decision, when the principles of the Mental Capacity Act apply.

 

 

But nothing much in law is settled “once and for all”   (with the honourable exception perhaps of precisely what words one can or cannot use when advertising carbolic smoke balls)

 

And the Court of Appeal have been grappling with the issue of whether a person who has capacity, is not a child, is not mentally disordered but is nonetheless “vulnerable” can have their autonomy restricted by use of the inherent jurisdiction of the Court.

 

The facts of the case are relatively straightforward, and I’ll quote them from the judgment  (the bolding is mine) :-

 

  1. For the purposes of the determination of the legal point the parties have helpfully agreed a set of “assumed facts” which formed the basis of the case before Mrs Justice Theis and before this court. I set them out below in full but in doing so make it clear that these assumed facts are not agreed by DL as being true and are, in fact, in the main denied by him.

“Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.

 

Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.

 

The local authority is concerned about DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.

 

The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.

 

The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife’s wishes.

 

 

When this case came before Lord Justice Wall in October 2010, he made injunctions under the Inherent Jurisdiction to safeguard Mr and Mrs L from the alleged domestic abuse from their son; notwithstanding that they did not apply for such an order and did not want that protection and were happy for their son to live with them.

 

Whether you think that is right or not, depends largely on where you stand on the personal autonomy versus protection of the vulnerable debate.

 

The legal issue for the Court of Appeal was framed in admirably concise prose by Mrs Justice Theis :-

 

“The central issue in this case is whether, and to what extent, the court’s inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor.”

 

The hearing in the Court of Appeal makes for interesting reading and some very strong arguments were marshalled on both sides.

 

For the appellant, DL, represented by Ms Nathalie Lieven QC  (someone I am sadly not familiar with, but without any doubt on reading this, a considerable force to be reckoned with and a piercing mind)  :-

 

  1. The principal arguments deployed by Miss Lieven in this court can be summarised as follows:

a) The only authority prior to the introduction of the MCA 2005 which indicated that the inherent jurisdiction extended to adults who maintained their mental capacity is limited to one case, namely Re SA. Re SA was not supported by any earlier authority and is therefore to be seen as an isolated decision which is insufficient to bear the weight now put upon it by subsequent decisions, including that of Theis J in this case;

b) The MCA 2005 was clearly intended to provide a comprehensive statutory code for those who lacked capacity;

c) If a case, such as the present, does not fall within the provisions of the MCA 2005, then there is no jurisdiction for the court to make orders controlling the lives of those who do not lack capacity within the meaning of the 2005 Act;

d) To the degree that there is any remaining inherent jurisdiction in this field, it is limited to providing a short period for the individual to be allowed to make his/her own decision, and if appropriate the provision of advice.

 

  1. In developing her submissions Miss Lieven understandably stressed the premium which the courts have habitually attached to the right of autonomy enjoyed by every individual in a democratic society. She relied upon the words of Lord Reid in S v McC: W v W [1972] AC 25:

“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”

 

[From my own distorted and unreasonable perspective, if you don’t feel even a tiny urge to stand up and applaud when reading Lord Reid’s words, I would raise an eyebrow at your decision. Were the world ever to lose all reason and appoint me to the higher echelons of the judiciary, deployment of that quotation in a relevant context would be a “Win the Game button”]

 

 

The difficulty for that case, as is obliquely noted in the Court of Appeal decision, is that it invites the Court of Appeal to conclude that Judges can’t be trusted to exercise powers with restraint and a great deal of caution, and they call upon a number of examples where such restraint and caution has been deployed to the advantage of the vulnerable.

 

And for the Local Authority respondent, represented by Paul Bowen  (I note that in this case, both parties had what might be described as ‘thankless briefs’  – one of them trying to justify the Local Authority’s right to interfere in the lives of people who had capacity to make their own decisions, even if those decisions might appear wrong to others, and the other trying to justify that even if the Court felt these adults were vulnerable and needed protection, the letter of the law forebade it)

 

  1. The appeal is opposed by Mr Paul Bowen on behalf of the local authority. He submits that the appeal is based on the false premise that the inherent jurisdiction argued for would permit the court to override the decision of any competent adult and thereby ignore their fundamental right to autonomy. Mr Bowen submits that the case is far more narrowly based than that and is limited to those individuals who fall outside the MCA 2005 but who nevertheless have not given, or cannot give, a ‘true consent’ to a particular aspect of their lives not as a result of mental incapacity but for some other reason, such as the undue influence of a third party. Mr Bowen’s submissions have therefore been to delineate the extent of the jurisdiction so that it only covers those cases where it is necessary for the court to act because a person’s capacity to make decisions for themselves has been overborne by circumstances other than those covered by the MCA 2005.
  1. Mr Bowen has the substantial benefit of being able to rely upon the analysis and conclusions of Munby J in Re SA and, understandably, much of his argument was designed to highlight and support those matters. In addition he drew attention to the fact that Parliament was expressly aware of the concept of ‘elder abuse’ during the pre-legislative scrutiny process. The MCA 2005 makes no express provision limiting or extinguishing the use of the inherent jurisdiction. Mr Bowen therefore submits that Parliament can be taken as intending that in so far as the inherent jurisdiction may cover matters outside the 2005 Act, then the legislation leaves that jurisdiction untouched to develop under the common law as it had done prior to 2005.

 

 

 

The decision

 

If you have read carefully so far, you will not be surprised that faced with deciding that Munby J and Theis J and Wall J are wrong and that Judges ought not to be trusted with the power to use the inherent jurisdiction to protect vulnerable adults, or deciding the opposite, the Court decided the opposite.

  1. I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of ‘vulnerable adults’ for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there.
  1. The appellant’s submissions rightly place a premium upon an individual’s autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA):

a) Under constraint; or

b) Subject to coercion or undue influence; or

c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

  1. I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case.
  1. In the same manner, the argument that in the Westminster case the court was concerned with a type of relief (preventing removal from the jurisdiction) which is not catered for in the MCA 2005 and therefore the existence of the inherent jurisdiction to supplement the statutory scheme is acceptable, in contrast to the present case, simply does not stand scrutiny. Either the inherent jurisdiction is there to act as a safety net for matters outside the Act or it is not. The fact that Thorpe LJ and Wall LJ were so firmly of the view that the jurisdiction had survived the implementation of the 2005 Act is a powerful indicator that the Appellant’s argument is wrong.

 

 

 

And then

 

  1. My conclusion that the inherent jurisdiction remains available for use in cases to which it may apply that fall outside the MCA 2005 is not merely arrived at on the negative basis that the words of the statute are self-limiting and there is no reference within it to the inherent jurisdiction. There is, in my view, a sound and strong public policy justification for this to be so. The existence of ‘elder abuse’, as described by Professor Williams, is sadly all too easy to contemplate. Indeed the use of the term ‘elder’ in that label may inadvertently limit it to a particular age group whereas, as the cases demonstrate, the will of a vulnerable adult of any age may, in certain circumstances, be overborne. Where the facts justify it, such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the appellant rightly prizes. The young woman in Re G (above) who would, as Bennett J described, lose her mental capacity if she were once again exposed to the unbridled and adverse influence of her father is a striking example of precisely this point.
  1. For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court’s protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.

 

And this bit is particularly important, as the Appellant’s fallback position was that if the inherent jurisdiction could be used, it should ONLY be for a short period, to allow the vulnerable person a period of time for reflection (and where appropriate to seek their own independent legal advice)  – this was rejected.

 

68. It follows that, despite the clarity and skill with which it has been argued, I have no hesitation in dismissing the appellant’s primary grounds of appeal and upholding the decision of Theis J in this case. Although argued as a separate, fall back, ground, it must follow from my unreserved endorsement of the full jurisdiction described by Munby J in Re: SA and applied subsequently in a number of cases at first instance that I reject the idea that, if it exists, the exercise of the inherent jurisdiction in these cases is limited to providing interim relief designed to permit the vulnerable individual the ‘space’ to make decisions for themselves, removed from any alleged source of undue influence. Whilst such interim provision may be of benefit in any given case, it does not represent the totality of the High Court’s inherent powers.

 

 

In the second judgment, Lord Justice Davies is able to express matters pithily  (perhaps as Lord Justice MacFarlane had done all of the heavy lifting in his seventy paragraphs of judgment)

 

 

76. Miss Lieven stressed the importance of personal autonomy. She expressed concern to the effect that the retention of the inherent jurisdiction might for the future be resorted to by public authorities, pursuing a “Big Brother” agenda, with a view to ensuring that adults make decisions which conform to an acceptable, state decided, norm (I put it in my words, not hers). I acknowledge the point but do not share the concern. It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. But the decided authorities show that there can be no power of public intervention simply because an adult proposes to make a decision, or to tolerate a state if affairs, which most would consider neither wise nor sensible. There has to be much more than simply that for any intervention to be justified: and any such intervention will indeed need to be justified as necessary and proportionate. I am sure local authorities, as much as the courts, appreciate that. It is at all events neither possible nor appropriate exhaustively to define “vulnerability” for this purpose. Cases which are close to the line can safely be left to be dealt with under the inherent jurisdiction by the judges of the Family Division on the particular facts and circumstances arising in each instance.

 

 

What is not clear is whether these powers will be used sparingly – I recall Wall LJs injunctions being reported in the mainstream press, but they don’t seem to have opened the floodgates to lots of these applications.

 

And what there is not, as yet, is any decision implying that a Local Authority would have a duty to use these powers to apply to the High Court for orders in the inherent jurisdiction and under what circumstances – reading the clear need for flexibility and not circumscribing the precise situation in which the powers should be used, I rather think that there will not be a decision that sets out the Local Authority’s duty to make such applications.

 

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Oh Ofsted, you’re such a, you’re such a hot temptation…

Posted on April 2, 2012 by suesspiciousminds

 

(A summary of the Right on Time Ofsted report into delays in adoptions)

 

 

 

 

Ofsted have prepared a report about the adoption process, which is an interesting read, particularly in conjunction with the Government’s own independent look at this, and the groundswell of political and media opinion that something has to be done.

 

I would not describe myself as an uncritical admirer of Ofsted, but this does actually read like a good solid piece of work, and they have examined the process and inspected those well-known saws about adoption panels causing delay, politically correct social workers delaying things to look for ethnic matches, and considered whether there is in reality any truth to it.

 

The report is available here  http://www.ofsted.gov.uk/resources/right-time-exploring-delays-adoption

 

 

They visited nine Local Authorities, with a good geographical spread. I have the advantage of having worked at one of those authorities, which is always nice to see.

 

The report outlines some helpful local initiatives – I particularly liked Norfolk’s “Family Law Summit”  and a few of the authorities had appointed professionals to perform a liaison job between the social work and family finding tasks and the Court process  (what you might call the “Claude Makele role of social work”  – okay, you might not, but I just did)

 

 

Adoption Panels

 

 

I think often Adoption Panels are an unwitting scapegoat in delays, with under pressure and beleaguered social workers, questioned about why their final evidence is late find themselves throwing out the “I couldn’t get a Panel date” excuse, which is too often accepted uncritically.  (And when did you first ASK for a Panel date, and when were you told you couldn’t get one, being the supplementary questions that never get asked)

 

And so we have a culture nationally that the judiciary and family lawyers generally think that Adoption Panels are nothing but a blight on the process, delaying matters whilst they drink tea and eat warm curled-up potted meat sandwiches in an airless room.

 

Ofsted haven’t actually bought into that myth….  (bolding here is mine)

 

71. Inspectors found no evidence of adoption panels contributing to delay, either in their responses to cases or in their capacity to meet the fluctuating but generally increasing number of cases presented to the panel.

72. All adoption panels made efforts to meet these demands by convening additional meetings when necessary. One panel had held four extraordinary meetings in the last 12 months to ensure that recommendations were made on time. Another had increased the number of regular panel meetings; yet another had already met three times in the month that inspectors visited. Elsewhere, a panel had used the opportunity to hear a case during their recent panel training day. Three additional panel dates were arranged as a contingency by one local authority, although they had not been required.

73. Effective arrangements were made to ensure that panels were quorate. One agency had recruited additional panel members to increase flexibility. Another had two panels but members could sit on either panel as required. Vice chairs stood in for panel chairs as necessary.

74. Inspectors saw several examples of the flexibility of panels in reducing delay in cases they were tracking. In two cases, the approval of adopters and the matching of those adopters with children were recommended on the same day. This was done to ensure that introductions and placement could commence more promptly. In one of the cases, this avoided the further delay of having to wait for the placement to commence until after the sensitive period of Christmas.

75. In one local authority, the variable quality of reports and the perceived lack of management oversight of these reports prior to panel meetings were identified as significant problems which caused delays in the progression of some cases. Nearly all panel chairs, however, reported that the quality of paperwork was uniformly high.

76. The Family Justice Review made a recommendation, accepted by the government that the requirement that local authority adoption panels must consider the suitability of an adoption plan for a child should be removed. There were mixed views about this. Some, mainly court or Cafcass representatives, felt that as adoption was a legal process, this was an unnecessary duplication of the court’s task. Panel chairs in particular felt that the panel discussions brought a range of perspectives and areas of expertise that added rigour to the decision-making process. Inspectors did not, however, find that the panel’s scrutiny of the case added delay for children. There was no evidence in the tracked cases that panel decision-making about the suitability of adoption delayed final hearings.

 

Politically correct yoghurt-knitting social workers insisting on ethnic matches

 

Ofsted did not consider that this crude stereotype, much beloved of the popular press was accurate.   (I recall vividly having had to search through Hansard on the debates on the Adoption and Children Bill, to see if they had addressed a particularly quirky lacunae, and the debate was 98% about same-sex adopters and unmarried adopters, and 2% sheer drivel, much of that drivel being hackneyed clichéd garbage about whether all social workers wear corduroy trousers. It was incredibly demoralising to see that MPs charged with delivering a legal framework for some of the most vulnerable in our society were so utterly out of touch with the real world)

 

11. Careful consideration was seen to be given to how the ethnic and cultural needs of children could be met. As in the wish to keep siblings together, the objective of seeking to meet these needs had to be balanced against other demands, such as the need to avoid delay. There was no evidence that local authorities were only looking for the ‘perfect’ or exact ethnic match, reflecting stated policies regarding adopter recruitment and permanence.

12. While local authorities paid due attention to ethnic or cultural needs, decisions to look for a ‘best fit’ were generally made promptly. In nearly all the cases seen by inspectors, ethnic and cultural issues did not cause delays. There were several examples where minority ethnic children had been placed with adopters from a similar background, with no delay. In those cases where it proved hard to find suitable adopters who could meet children’s needs in those areas, but were not necessarily from the same background, delays typically ranged between one and six months.

 

 

 

 

Court proceedings and assessments

 

The finger does get well and truly pointed at the plethora of assessments and the often sequential nature of such assessments, being the main factor in delay, however.

 

[I am reminded here of my all-time hero, Gilbert Keith Chesterton, who stung by a series of letters to The Times about what varying things were making our great country go to the dogs, wrote his own pithy letter. Dear Sirs, I know exactly what is wrong with this country. It is me. Yours faithfully, G K Chesterton]

26. The most significant cause of delay in tracked cases was the length of time taken for care proceedings to be concluded before an adoption plan could be confirmed. The average duration of completed care proceedings in tracked cases was slightly under 14 months. The individual local authority area average for these cases ranged from 11 months to 20 months.

29. Additional and repeat assessments during care proceedings, generally occurring sequentially, were found by inspectors to contribute to the delay in achieving permanence for children in 20 (38%) of the cases tracked. This figure does not include those cases where the ability of parents and extended family members to care for children was quite properly assessed as part of proceedings in a timely manner. The 20 cases were cases where repeat or late assessments had a measurable and adverse impact on the timely granting of a placement order. Delay for these children was measured in months, or in some cases, years.

 

Now, one has to be careful here, because the Inspectors were looking back at cases which ultimately had unsuccessful outcomes (in that the child/children were adopted, rather than could be placed within the family), so there is a danger in drawing inferences about cases generally; since obviously all cases that end in adoption did not have assessments which made the positive difference and ended up with rehabilitation.

 

I happen to think that it is probably right that in 75% of cases, those second opinion assessments, when you’ve already done one thorough assessment, tell you nothing at all and make no difference.  The trick is, in determining whether the instant case before you is one of the 75% or the 25%.

 

32. There was a common perception that the courts’ anxieties about upholding the Human Rights Act[1] often overrode the ‘no delay’ principle of the Children Act 1989. There was a general consensus that the court process was adult-centred. One social worker said that children get ‘sucked into court’, without sufficient consideration of the impact on the children’s emotional well-being.

33. In eight cases, the commissioning of independent social work assessments essentially duplicated the task of the allocated local authority social worker and prolonged care proceedings. These assessments generally arose due to a disagreement about the proposed plan between the guardian for the child and the local authority or as a result of effective advocacy on behalf of the parents. In a number of the cases examined, repeat assessments, often ordered late in the process, ended up confirming the outcome of the original assessments but added months to the delay before the child’s future could be determined. In one case, a potential adoptive match was lost, leading to further delay.

 

It is hard to say if this is right; it certainly appears that there’s a correlation between the duration of care proceedings going up  and the introduction of the Human Rights Act  (and I noted from a recent analysis that prior to introducing a 40 week time limit, the average duration of proceedings was below that, and after the 40 week limit the average just went up and up and up  – why? Because once you set a time limit, it is assumed that the run of the mill case will take that limit, and then you add all of the longer ones on top, skewing the average, whereas before there was a time limit, the shorter cases would end earlier)

 

But correlation is not causation.  It could well be that the decisions of the Court of Appeal, quashing Judge’s decisions when they had tried to resist independent assessments had more to do with the proliferation of second opinion expert reports than the HRA  – or it could of course be that it was thinking about the HRA that led to those assessments.

I would suggest that in a considerable number of cases, assessments are commissioned not because there is the gap in the evidence envisaged by the Court of Appeal in TL v (1) LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2) ED (3) S (BY A CHILDREN’S GUARDIAN (2011) [2011] EWCA Civ 812  but through fear that if you get to final hearing without a psychological, or an independent social work assessment, or a culturally appropriate expert, that the whole of the final hearing will be spent bemoaning that fact and trying to persuade a Court that it would be unfair to make final decisions without one; so acqueisance to the instruction of an expert is often with a view to it being worse to reach a final hearing in four months time and then have the Court decide to adjourn for a further four-five months to get a psychological assessment rather than get one now, and have the final hearing in six months time.

 

That’s not going to change until the Courts who determine that a further assessment isn’t needed and apply the principles in TL V London Borough of Hammersmith and Fulham get the backing for that decision by the Court of Appeal.  It may come on its own, it may require the FJR to be put into statute, it may still not come, but one can’t be surprised that professionals and the Court play cautiously when there’s such a risk of being overturned when robust case management decisions are implemented.

 

This also feeds into the next issue that Ofsted considered, which was the relative weight that social workers evidence gets, compared to that of other professionals.

37. In nearly all local authorities, social workers reported that they lacked credibility and status in the court arena. They believed that the lack of confidence in the quality of local social work assessment resulted in a reliance on independent ‘expert’ assessments, and therefore an increase in the duration of care proceedings. Several representatives from Cafcass and the courts, including senior judges, shared this view.

38. Social workers in several local authority areas were frustrated by a sense that they were not perceived as ‘experts’ in their own right and they felt that independent assessments were not often of superior quality to their own. Managers and social workers in some of these local authorities felt that the implied criticism was unfair, and based on an historical reputation that was no longer warranted.

39. In some areas, Cafcass and the court representatives accepted that the general view of social workers may in part be based on an out-of-date stereotype, but nearly all stressed that the uneven quality of local authority social work assessment remained a problem and was the main factor in the high number of repeat and independent assessments.

40. Senior managers in four local authorities openly expressed their concern that too many social workers responsible for cases in care proceedings did not yet have the necessary expertise and experience to undertake the work well. In particular, they believed that some social workers struggled to consider permanence issues adequately among all the immediate demands of court work including undertaking family assessments, managing contact arrangements and carrying out the myriad responsibilities associated with looked after children.

It is a particular bugbear of mine that Courts continue to give Guardian’s evidence the same weight as they did in the early days of the Children Act 1989, when Guardians really were the independent eyes and ears and a check and balance that the Act envisaged, rather than the Diet-Diet-Diet Guardian we currently have, as a result of CAFCASS trying to manage the service within budget by diluting the service. The next dilution of the service will result, I think, in homeopathic Guardians, where they are so dilute that there is no longer any actual connection with the child in question at all. No doubt they will still have a placebo effect…  Ofsted acknowledge that this gap between a social worker’s opinion and that of the Guardian exists.

 

 

 

43. There was a general perception within local authorities that children’s guardians were likely to be more experienced than the local authority social workers and that their views, as a result, carried more weight. Several Cafcass and court representatives acknowledged that this perception may, however generalised or mistaken, have sometimes affected courts’ decision-making.

44. In one case, the local authority had a firm plan for adoption but at a directions hearing as part of the ongoing care proceedings, it was agreed that the plan should be changed to reunification with the child’s mother. Both the social worker and the senior manager reflected that the local authority had been ‘railroaded’ into this change of plan; in their view the social worker’s low status in court compared with that of the guardian, who supported the change in plan, was a key contributing factor. The social worker did not feel equipped to challenge the court’s position and the local authority acknowledged that its own legal advice was insufficiently robust. The plan for a return home was not successfully implemented and there was now likely to be a delay of over a year for the child to be adopted.

 

 

 

 

 

 

Local Authority legal representation

 

It would be wrong of me, as a local authority lawyer, to gloss over the complaints and issues identified in the Ofsted report about people like me across the country.

45. Views varied on the quality of local authority legal advice. Social workers and managers did not always feel that legal representatives robustly challenged parents’ solicitors or guardians. One authority had recently altered its commissioning arrangements for obtaining legal advice, and each consultation now incurred a fee. This was designed to discourage a previous over-reliance on legal advice, but there was a general consensus that access to legal advice was now actively discouraged by managers and, consequently, was sometimes delayed.

 

Working relationships between Local Authorities, CAFCASS and the Courts

 

50. Inspectors found that the relationship between the main participants in the court process was often marked by mistrust – ‘There is an inherent tension here between social workers and guardians,’ said one senior Cafcass manager – and it appeared at times to be adversarial, with each often blaming the other for faults in the system. This tension, however, was less evident in areas where more regular meetings between key agencies were held to address shared concerns and had promoted the development of more constructive and mutually understanding relationships.

51. In all local authority areas, inspectors heard that key court stakeholders met on a regular basis, but often those meetings concentrated on business issues of the court and were acknowledged to lack focus on outcomes for children. Other examples of joint working included regional away days, training, and development work as part of a local performance improvement group. Too often, however, these meetings were erratically attended or had ceased to be convened and most of the professionals spoken to by inspectors felt that they had not had a measurable impact. There was often a lack of consistency in reports about joint activity across local areas, reflecting a low awareness among professionals of how the different partners worked together.

 

 

These are much the same concerns as highlighted in the Family Justice Review, that there is mutual suspicion, distrust and blame, between the different organisations who are trying to deliver family justice. This clearly is a problem, and the bit I have put in bold above is something telling, but the first time that I’ve seen someone brave enough to put it into writing.

 

Maybe Norfolk’s idea of (peace) Summits is a good one.  I for one look forward to being involved in such talks, and perhaps we should introduce the UN Model of simultaneous translation too, since Local Authorities, Cafcass and the Courts all seem to be speaking slightly different languages.

 

 

 

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“Opening the windows and breathing in petrol”

Posted on March 30, 2012 by suesspiciousminds

The recent furore over petrol-shortages (which have come about because people think there might be a petrol-shortage, and have thus manufactured the situation they were fearful of)  reminded me of a piece of work I did way back in the mists of time, when “Schedule One offender” was a phrase often deployed within care proceedings.

Peculiarly, this phrase was generally distorted by the mothers within care proceedings to be “that Schedule Offender One”  making certain aspects of conversations take on a Liverpudlian, Brookside twang (despite being on the other side of the country).

The piece of work I had to do was to slog through all of the legislation and draw up a list of exactly what offences WERE accurately labelled as Schedule One offences, and which were not.

One of the particular quirks (as it arose in a case where the parents following the final hearing, shut the contact supervisor in a cupboard and legged it with their child being on the run for about a fortnight, and plea-bargained that down at criminal trial to “attempted abduction”) was that for many offences, an attempt was not a Schedule one offence, only the successful execution of it.

But I do recall, quite vividly that at that time, you could become a Schedule One offender by selling petrol to a child under sixteen.

(and frankly, I don’t need much of an excuse to (a) be topical and (b) throw in a Jam lyric)

I also remember that allowing children under 14 to do street performances, and that allowing a child under 12 to do any dangerous activity would be Schedule one offences.   It was many, many, years ago, but I also recall that regardless of whether a child was within ten miles of you, it was a Schedule One offence to set a fire in a telephone box….

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“Here they are, they’re so appealing…”

Posted on March 30, 2012 by suesspiciousminds

This is an interesting decision of the Court of Appeal

RE (R : Children ) 2011   – which although decided in June last year has only fluttered across my radar this week, courtesy of Pink Tape

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1795.html

Two elements in particular interested me, as I have noted a growing tendency of the Court of Appeal to ‘get under the bonnet’ of findings of fact cases and make the reverse binary finding than had been made at first instance.

This passage may assist in any future such cases, and is from Mr Justice Hedley, whom I have previously hero-worshipped :-

“This was, it has to be remembered, a county court case, and this court simply has to accept that county court judges may not produce judgments under pressure that are reasoned with all the detail and finesse that may have come to be expected of a reserved judgment in the High Court. The judge here has found the background facts, correctly applied the law, identified all the matters that call for caution before making his central finding as to sexual abuse. That, in my view, was entirely adequate, as it explained to the parties and indeed to this court the matters that he had had in mind when reaching his decision.”

I think it is the element relating to identifying all of the matters that call for caution before making the central finding that has led to some of the successful appeals being granted – we are not too far away from a Judge dealing with sexual abuse allegations having to give herself (or himself) the sort of detailed direction as to the caution to be applied as has become customary in the criminal courts.

Lord Justice Munby (who has made some decisions that professionally have been a blight on my day to day work – particularly his obiter remarks in the judicial review that led to a ‘daily contact’ rule of thumb springing up across the land, but whom I always enjoy reading) makes some important remarks about case management, reflecting that by the time of the appeal, the case had been in proceedings and the children in care for 13 months, and the case had not actually progressed beyond fact-finding stage.

  1. Ever since the protocol was introduced in 2003 the objective has been to ensure that no care case lasts more than 40 weeks. That, as we all know, is an objective to which it has never been possible to achieve and, as we all know, there are still, eight years later, far too many cases in the system taking more than 40 weeks to come to a conclusion. That said, the periods involved in this case are not merely excessive in comparison with the target; they are greatly in excess of that and much to be implored. The issue, of course, is one of time. Those involved with the system do their best to achieve the outcomes for children and families as best they can, struggling against inadequate resources, but it is nonetheless a deeply distressing fact that this case should have lasted already as long as it has.
  1. The second feature, it would appear, is that no judge has ever been allocated to the case as the allocated judge who, whether or not he or she is able to conduct the hearing, is nonetheless the judge who, as allocated judge, has overall judicial case management responsibilities for the case, and part of whose functions is to ensure the maximum degree of judicial continuity. Indeed, the indication that has been given is that there has been a significant absence of judicial continuity in a case where a serious non-compliance with the procedures in the court there has never been a judge allocated. The principle that a judge should be allocated in a care case was laid down in emphatic terms, as was the necessity for the vigorous judicial case management judicial continuity in the protocol introduced in 2003. That has now been superseded but in this respect without any change in substance by the more recent public law outline. I find it disturbing that in 2011, eight years after the introduction of the protocol, there should be a care case involving allegations as serious as this case does, where there has apparently been such significant failure for whatever reasons to comply with the normal processes and practices of the court. I cannot help suspecting that those failures have had some contributory impact upon the third factor, which as my Lord has pointed out is the disturbing fact that the fact-finding hearing which, as the House of Lords has made clear, is merely the first part of a single process to be conducted by the same judge, the other part being the final or, as it is sometimes unfortunately called, disposal cases. The case was allocated for fact-finding purposes to a judge whose sitting patterns would have made it difficult and, as it has turned out, impossible for him, within any acceptable timescales, to conduct the second and, it may be in this particular case, the third part of the hearing.
  1. It is a matter of very profound concern and deep regret that the system should have operated in so unsatisfactory a fashion in a case of considerable significance to the parents and where, as my Lords have pointed out, a percentage of their lives, which in my assessment is wholly unjustifiable, have been taken up with litigation to which the end is not yet in sight. Something must be done.

I suspect, and I have known quite a few of them, that being the County Court family listing officer is one of the most thankless and under-remunerated jobs in the entire profession; and that very often the desire for judicial continuity gets gently set to one side in the desire to keep the number of cases who are told “you can’t go ahead and your hearing will need to be vacated due to unforeseen problems” to a minimum.  They are routinely trying to juggle listings that are running at 200% of actual judicial capacity, and sometimes something has to give.

I genuinely believe that every Court in the country, every Judge in the country, passionately believes in judicial continuity being a good thing and would want to preserve it; and that there would be savings and reduction in judicial reading and better case management if judicial continuity was sacrosanct. But I suspect that the price for that would be more and more cases being weighed off and vacated at the doors of the Court because of the pressures of trying to manage a court diary that has to, as a result of resources, run so much in excess of capacity if every case stands up to its time estimate.

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“Oh don’t leave me alone like this” – the legal test on Stays

Posted on March 30, 2012 by suesspiciousminds

Apologies both for the lack of blogging (have been on puppy-adoption leave) and bringing East 17 into this. Possibly the first time East 17 and the Children Act 1989 have been combined together, unless there was a case conference about whether having your child dressed head to toe in Burberry was emotionally harmful…

I thought I’d share the relatively recent decision on applications for Stays in care proceedings, firstly because it filled a gap in caselaw  (it remains a source of amazement and inspiration to me that nearly twenty years after the Children Act took effect, there are still gaps to be filled in), and secondly because I was trying to find this the other week, knowing that it existed and what the gist of it was, and I had a hell of a job…

The tl:dr version is that the case (Haringey 2011) derives these five principles to be applied in any application for a stay :-

  1. The Court must take into account all the circumstances of the case
  2. A stay is the exception rather than the general rule
  3. The applicant seeking the stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted
  4. The court applies a balance of harm test, in which the prejudice to the successful party must be carefully considered
  5. The Court should take into account the prospects of the appeal succeeding, and only consider a stay where there are strong grounds of appeal or a strong likelihood of success.

 

 

The word nugatory struck me as being potentially interesting, as well as having good ‘mouth-feel’  (like the word I got from Inky Fools this week ‘apricate’ meaning to bask in the sun)  and so I double-checked it  – it means ‘trifling’ or ‘of no value’  and derives from Latin meaning ‘jester’ or ‘trifler’

 

 

Neutral Citation Number: [2011] EWHC 3544 (Fam)

Case No: BT 09 C 00235

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

7th October 2011

B e f o r e :

MR. JUSTICE MOSTYN
____________________

Between:

NB

 Applicant

– and –

LB OF HARINGEY

 Respondent

____________________

____________________

MISS TERESA PRITCHARD (instructed by Eskinazi & Co.) for the Applicant
MR. JUSTIN AGEROS (instructed by LB Haringey) for the Respondent
MISS JANE PROBYN (instructed by Donald Galbraith & Co.) for the Guardian
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

MR. JUSTICE MOSTYN:

  1. Yesterday, at 5.30 p.m., the North London Family Proceedings Court made an interim care order in respect of JG, who I think is nearly 3 years old. The application before me today is for a stay pending an appeal of that decision, which appeal would likely be heard on 28th October 2011 by the Circuit Judge in the Barnet County Court.
  1. Given the nature of the application and of the decision I have to make, it is important that I do not say more than is strictly necessary to decide the application and do not say anything which might influence the outcome of the appeal one way or the other.
  1. The application was made against a backdrop of considerable chaos in the life of this child. His mother is an admitted drug user who claims to have foresworn the use of drugs until comparatively recently, six weeks ago. She is a person who has not complied with agreements and directions for testing for drugs notwithstanding the plainest warning to her on the face of an interim order of the court that were she not to do so the inevitable inferences would be drawn; and she is a person who maintains a close relationship with her partner who is in prison convicted of serious domestic violence upon her.
  1. The position of the mother before the justices was that the interim threshold was not passed. In contrast, the position of the guardian was that the interim threshold was indeed passed but that an interim supervision order rather than an interim care order should be made. The position of the local authority was that the interim threshold was passed and an interim care order should be made. The result of the case was that an interim care order was made. The magistrates produced their reasons in an extremely abbreviated period of time. Inevitably, analysis of those reasons reveals that they may have been better put but the pressure of time meant that defects were almost inevitable.
  1. A complaint is that section 5 of the written decision relies only on the risk of domestic violence at the hands of a man who is in prison and will remain in prison until the matter is next considered by the justices, and does not make any explicit reference to the other matters, although in their account of the history it is clear that those other matters were at the forefront of their mind, which is hardly surprising given that the mother herself had given oral evidence before them.
  1. The appeal is governed by Part 30 of the Family Procedural Rules 2010 and Rule 30.8 states that an appeal notice does not operate as a stay of any order or decision of the lower court unless the lower court or appeal court orders otherwise. There are numerous authorities bearing on whether a stay should be granted although, rather surprisingly, there is none so far as I am aware on whether those tests are modified in a case involving a child, whether in private law proceedings or public law proceedings. Plainly, the test which I will adumbrate in a moment has to be seen through the welfare prism that overarches all family proceedings. That said, the principles cannot, in my judgment, be materially different whatever the nature of the dispute in hand.
  1. The leading authorities are Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Leicester Circuits Ltd v Coates Bros plc [2002] EWCA Civ 474, Contract Facilities Ltd v The Estates of Rees (decd) [2003] EWCA Civ 465, the old Court of Appeal case of Wilson v Church (No. 2) [1879] 12 Ch Div, 454, an unreported decision of the Court of Appeal, Winchester Cigarette Machinery Ltd v Payne (No. 2), 15th December 1993, and a helpful decision which seeks to draw all the authorities together given by the Chief Judge of the High Court of Hong Kong, Ma J, Wenden Engineering Services Co Ltd v Lee Shing UEY Construction Co Ltd, HCCT No. 90 of 1999. In that latter case the Chief Judge stated:

“7. The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It can be put this way, the existence of an arguable appeal, that is one with reasonable prospects of success, is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exists arguable grounds of appeal no stay will be granted. Conversely, however, the existence of a strong appeal or a strong likelihood that the appeal will succeed, will usually by itself enable a stay to be granted because this would constitute a good reason for a stay. (See Winchester Cigarette Machinery Ltd)

8. In most cases the court will not be dealing with the extreme situations I have referred to. Often, it will be faced with simply the existence of an arguable appeal. Here, it becomes necessary for the appellant to provide additional reasons as to why a stay is justified. The demonstration of an appeal being rendered nugatory is one example albeit a common one. Here, where it is demonstrated that an appeal would be rendered nugatory if a stay was not granted the court may require no more than the existence of an arguable appeal. Correspondingly, where it cannot be shown that an appeal would be rendered nugatory if a stay were not granted, the court will require in the absence of any other factors the applicant to demonstrate strong grounds of appeal or a strong likelihood of success.

From these authorities I derive the following five principles in relation to the application before me. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.”

  1. In this case, given the proximity of the appeal hearing and given the nature of the dispute, namely, the effective residence of the child for the next three weeks and one day, there is no question that the appeal will be stifled were a stay not to be granted. It therefore follows, in my view, that in order for a stay to be awarded it has to be demonstrated today that there are strong grounds of appeal or a strong likelihood of success. I find it impossible on the material before me to reach that conclusion. Indeed, in circumstances where it was accepted by the guardian, and indeed positively asserted by the local authority, that the interim threshold had been passed, it likely becomes a simple question of analysing whether the exercise of discretion made by the justices to award an interim care order rather than an interim supervision order has miscarried or it is otherwise demonstrated to be plainly wrong. On the material before me I cannot say that that is the case, although I am not, I emphasise, deciding the appeal. What I am deciding is that I am not satisfied on the material before me that there are strong grounds of appeal or a strong likelihood of success and the application is therefore refused.

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sound the action klaxon, summon action jackson…

Posted on March 14, 2012 by suesspiciousminds

It is all go today, good job it is my non-working day. My bits will be in bold, on this piece – the non-bold stuff is directly from the report.

The much-vaunted Government Adoption Action Plan is finally published. No longer will we have to rely on scraps on information leaked by Ofsted or behind paid firewalls at the Times (just a little gripe that if you are going to launch far-reaching policy guidance on vulnerable children, maybe making people pay Rupert Murdoch if they want to read it isn’t the greatest plan)

Here’s where it is  (in usual government style, it takes a while to find by searching, so I’ll save people the trouble)

http://media.education.gov.uk/assets/files/pdf/a/an%20action%20plan%20for%20adoption.pdf

Firstly, tackling delay in adoption is a laudable aim, as is trying to do something about the disparity of time that children of different ethnicity have to wait, and promoting the concept that adoption might be something that more people want to try and removing some of the more unnecessary barriers to good-hearted people coming forward are all good things. 

Let’s see if they’ve accidentally thrown the baby out with the bathwater, however. The headlines flying around suggest that the report is yet more micro-management and exactly the sort of Tony-Blair target-setting that has (a) worked so badly in the NHS and (b) Munro thought so little of.  Are those headlines reflective of the report as a whole, or have the Government just done a press-release for the media that’s all “tough on lazy social workers, tough on political correctness gone mad” but with a report that is actually much more nuanced and thoughtful?

A shocking statistic early on  (albeit from 2004) – that 42% of looked after children aged between 5-10 had a mental disorder of some kind – this being five times the figure for children of that age-group generally.

The current number of looked after children under five is 15,680 and growing quickly.

.Delays in the adoption system cause lasting harm for vulnerable children, and may rob them of their best chance of the love and stability of a new family.  Based on an in-depth study of the case histories of 130 older looked after children for whom adoption had been identified as the best option, Dr Julie Selwyn concluded that: ‘delay in decision making and action has an unacceptable price in terms of the reduction in children’s life chances
and the financial costs to local authorities, the emotional and financial burden later placed on adoptive families and future costs to society’. We must not and will not allow unnecessary delay to continue

There’s a nice recognition of both the important role that social workers have, and the risks of breakdown – it is pleasing to see some proper research being commissioned into adoption breakdowns  (I’m sure we’ve all heard different figures bandied about, to suit various agendas, as to what proportion of adoptions break down and it will be good to get a definitive answer, and hopefully some better understanding of the factors that lead to this and how we can address them.)

32.Social workers have an extremely sensitive, challenging, and important job to do.  We expect them to make decisions which change lives, on what can only ever be imperfect evidence.  We owe them a great deal of gratitude.
33.When a social worker is considering a decision about adoption, the risks of getting it wrong are all too evident in terms of the impact on vulnerable children, birth parents and adoptive parents.  What can be less obvious is the harm done to the child by delaying adecision in order to allay all remaining doubts.
34.Social workers need time to gather the necessary evidence, work with birth parents and provide the basis for a robust decision.  Some argue that efforts to speed up adoption will lead to an increase in adoption breakdown, by forcing social workers and local authorities to make rushed and therefore lower quality decisions.  Adoption breakdown is of course an important issue and we currently have too little data and evidence about it.  Estimateshave tended to put it at around 20%, but in his recent report, Martin Narey convincingly argued that the true figure was much lower – around ten percent for children adopted under the age of five, and just three percent for those adopted under the age of one.  He cited a study which followed a high risk group of children – adopted between the ages of five and eleven – until their fourteenth birthday. It found that 23% of the adoptions had broken down by that age, which would suggest a much lower rate for adopted children overall.  We have commissioned the University of Bristol to undertake further research into the rate of and reasons for breakdown
35.But it is too simplistic to argue that speedier adoption will lead to more adoption breakdown.  First, it is wrong to suggest that unnecessary delay in the system is all down to social worker decision-making – the causes are much more widespread and include the regulatory and accountability frameworks, the supply of prospective adopters and issues in the family justice system. Second, as we have seen, taking longer to make decisions is in itself harmful to children and reduces the chance of successful adoption

This also sounds like a sensible proposal

.Currently, the generic degree for social workers contains limited content on child development, attachment theory and other relevant research from neuroscience, and very little on adoption.  The Government is asking that universities address these gaps as a matter of urgency
43.The Family Justice Review identified a similar issue and suggested that a better understanding of child development and the negative impacts of delay for children was an absolute requirement for all family judges.  It recommended that the Judicial College, the provider of training for judicial office-holders, reflect this in its training for family law work.  The Government accepted this recommendation and will work with the JudicialCollege to take it forward.
44.At present, there is no readily accessible reference material for family justice professionals, such as judges, magistrates and lawyers, on the impact of delay on a child’s development. To address this, the Government has commissioned Professor Harriet Ward to produce some concise but authoritative guidance which summarises the key research evidence in the context of care proceedings.  The Government will make this guidance available later this year

Best-practice – they were taken with the involvement of Coram in adoption, and particularly this model 

We spoke to a number of local authorities who had rigorous case management systems, which were effective in tackling delay.  The London Borough of Harrow, which works with the voluntary adoption agency Coram, holds monthly meetings chaired by a Coram senior manager at which the progress of every child is tracked.  These meetings help social workers to balance the demands on their time and give due regard to the child’s pressing timetable in their decision-making. They provide a forum for delay to be escalated and tackled – for example by widening the search for a family to other agencies.  They can also offer a useful mechanism for the
Independent Reviewing Officer (IRO) to monitor the local authority’s performance of its functions.  Every looked after child has an IRO, who is appointed by the local authority to quality-assure care planning.
48. Our fieldwork showed that these simple but effective approaches are not yet standard practice.  The Government will therefore work with the Children’s Improvement Board – the consortium of local government representatives responsible for supporting local authorities in improving children’s services – to gather and disseminate best practice in establishing management systems that help ensure swifter high-quality decision-making.

Ethnicity – the big hot potato of a political issue  – the italics are mine here, to show plans for new primary legislation

52.That is not to say that ethnicity can never be a consideration.  Where there are two sets  of suitable parents available then those with a similar ethnicity to the child may be the better match for the child.  Sometimes an ethnic match will be in a child’s best interests, for example where an older child expresses strong wishes.  However, it is not in the best interests of children for social workers to introduce any delay at all into the adoption process in the search for a perfect or even partial ethnic match when parents who are otherwise suitable are available and able to provide a loving and caring home for the child.
53.Similarly, there are approved adopters who are ready and able to offer loving homes but who are too readily disregarded because they are single, or considered too old.  These can, of course, be relevant factors, but we know that in most cases delay and the instability associated with it will be the greater potential cause of damage to the child.
54.The Government will bring forward primary legislation at the next available opportunity to  address these issues.  The overriding principle in finding a match for a child will remain what is in the child’s best interests throughout their life

National register – requirement to search on this register after 3 months if child not placed

56. It also proposes a legislative requirement on all adoption agencies to refer to the Adoption Register all prospective adopters who are not being matched to a child within three months of being approved (provided the adopters agree).

58 .We are also considering other ways of promoting earlier and wider efforts in family finding.  Over the last decade, about 20% of children who have been adopted were placed with adopters recruited and approved by voluntary adoption agencies, but voluntary adoption agencies tell us they could do more.  One of the reasons that many local authorities do not make more use of them is that they think the inter-agency fee is   too high. In fact, Dr Julie Selwyn has found that inter-agency placements cost virtually the same as in-house placements when overheads are taken into account. As part of our work for the summer children in care publication, we intend to review the effectiveness of local authority commissioning arrangements for adoption, and consider whether further action should be taken to increase the role of voluntary adoption agencies in the system.

(I have to confess that this bit makes me apprehensive, and thinking that when some people hear the phrase ‘conflict of interest’ they might possibly be hearing something different to when I hear it. My fear prior to reading this report is that it would be setting up a system that public authorities couldn’t comply with, in order to smuggle in private practice taking over the role of adoption agencies – this being a political belief that private=better than public always, which has served us so well in IT, security guards, the NHS, construction of schools, hospitals etc over the years. This was the first bit that made me shudder, as I am very aware of the gulf that currently exists between in-house and inter-agency placement fees/costs)

Concurrent placements, and make it more easy to convert from fostering to adoption

.We would like the principles behind concurrent planning to be used more widely and for children as well as infants.  Whilst there can be no question of pre-empting a court decision, we want to see local authorities working with family-finding teams as early as possible to find potential permanent carers for children, and children with families who may, if the court agrees, go on to adopt them.  Where a child’s case is still in court and no placement order has been made, these placements are foster placements under the Children Act 1989.
62.While such practice is consistent with the current legislative framework, the Government believes that it should be easier for local authorities to approve prospective adopters as foster carers as this would enable more children to benefit from a greater continuity of care.  We will therefore consult on changes to legislation to enable a more stream-lined process for prospective adopters to be approved as foster carers in appropriate cases. This will enable vulnerable children, for whom there is little likelihood of a return home, tobe placed with their potential permanent carers as early as possible.  Local authorities will make sure that carers have the necessary skills, training and ongoing support to meet the needs of the child who is being fostered whilst allowing full consideration of the placement order application by the courts, and the birth family will continue to be supported.

I’m very excited about the idea of concurrent placements and think that it has potential to really transform outcomes for children. I was very excited when I first came to my area that it was something they did, but in three years, I’ve not done a single one, and the distrust of it amongst other family justice practitioners has made it unworkable. I can see a real and genuine fear amongst those acting for parents that foster carers (who often are a source of primary evidence about say, how the children react to contact or missed contacts) might find themselves in a conflict of interest if they are at the same time hoping to adopt the child AND providing the Local Authority with evidence about the children.

Recruitment and training of adopters   (all seems sensible – though I’m not sure four months gives the time both for a robust assessent and for the prospective adopters to have really undergone the rigorous self-examination that is required)

76.At the heart of the proposals is a radically redesigned two stage training and assessment process.  For the majority of prospective adopters the first stage (pre-qualification) will be completed within two months and the second (full assessment) within four.  There will be a fast-track process for people who have adopted before, or who are already approved foster-carers who wish to adopt a child in their care.
77.The pre-qualification phase will involve initial training and preparation – clearly separated from the full assessment phase.  During this stage, prospective adopters will use initial training sessions and online training materials to develop their understanding of adoption and to reflect on what they have to offer before progressing with their application.  The full assessment stage will consist of more intensive preparation and training and a new more streamlined and analytical assessment process. Adoption agencies will sign up to assessment agreements with prospective adopters setting out what will be involved and what the timetable will be, given their particular circumstances.
78.We think this new process has the potential to improve significantly the quality of the service that prospective adopters receive from the adoption system and to begin to increase the numbers that enter and complete the assessment process while providing the appropriate rigour. This in turn will improve its reputation and attract greater numbers of prospective adopters.  We accept these proposals outright.  Implementing them fully will require changes to regulations, statutory guidance and the National Minimum Standards. The Government will consult on the necessary changes later this year, with aview to implementing them as early as possible next year.  In the meantime, theGovernment will work with the national and local agencies represented on the WorkingGroup to prepare for successful implementation of the new system.   BAAF has produced a draft new assessment form and intends to pilot this over the coming months.  We agree in principle with the proposal that the government develop new online training materials,and will consider further how they can best be developed.
A new national gateway to the adoption system  – again, seems sensible that adopters can get a secondary route into the process and not be solely reliant on their own LA

79.The Working Group’s second key proposal is the creation of a new national gateway to the adoption system.  This would complement adoption agencies by providing a central point of contact for anyone interested in adoption.  Through a telephone helpline and website, it would provide independent advice and information about adoption and how to apply to become an adopter.  In particular, it would make sure those interested in adoption knew they were not obliged to adopt through their local authority, and help them to choose the right agency for them in their local area.  It would also assess management  information about how prospective adopters are treated and support a national customer service charter.
80.We think the proposal for a new national gateway could dramatically improve the experience of those who enquire about adoption.  We think it could also help prospective adopters to exercise greater choice and so encourage improvement by adoption agencies.  We accept the proposal in principle but before we begin to implement it, we want to consider whether the gateway’s remit should extend further.  Should it for example have a role in supporting prospective adopters to hold local authorities, voluntary agencies and consortia to account for the quality of their service?  Should it be linked to the Adoption Register – the other national element in what is primarily a local system?  Should we seek to encourage all prospective adopters to use it as a first point of contact to ensure it has a comprehensive national picture of the supply of adopters? We will explore these questions and others, with the help of the Working Group, in order to develop a final proposal in time for the summer children in care publication.  We welcome the proposal for a customer service charter and we have asked the WorkingGroup to develop its contents, as we consider the proposal for a national adoption gateway

There’s also discussion of an “adopter’s passport” which will be a transparent guarantee of the support adopters will get – sounds very sensible (silent as to whether there will be more funds for adoption support, and silence speaks volumes, as we all know)

The adoption scorecard  (this is where the ghosts of Tony Blair and John Major’s cones hotline came in and rested cold skeletal hands on my shoulder, but I don’t think it is necessarily as bad as the truly awful name suggests – it might actually be a way of getting some quality information as to where the problems exist so that they can be targeted – and I mean where in the system more than where in the country)

A new adoption scorecard
94.All of this will make a difference, but we need to go further if we are to get the system from where it is now to where it needs to be to best serve children in need of adoption.
95.Generally, the Government does not believe in managing the performance of local authorities from the centre by reference to a large and comprehensive set of targets and indicators. In most circumstances, we think it is more effective for local authorities to be held accountable by their local residents through democratic means.  However, where necessary, we continue to take action ourselves to ensure adequate services are provided to the vulnerable. Looked after children are amongst the most vulnerable people in our society and they are not in a strong position to hold the local authority – who acts as their parent – to account.  It is clear that the current inspection and accountability frameworks have not secured the improvements needed to maximise their chances of being placed quickly in a safe and loving home.
96.At present, all but a small handful of local authorities fail on average to meet the timescales that statutory guidance sets out for the different parts of the assessment process.  And there is huge variation between local authorities.  Large numbers of them fall short by a significant margin, with the very slowest local authorities taking an average of nearly three years for a child to go from entering care to being placed for adoption.  As this Action Plan has made clear there are a variety of reasons for this, but for the sake of children whose best future depends on timely adoption, we need to increase the focus of the adoption system on eradicating unnecessary delay.
97.In the coming weeks, the Government will therefore publish new adoption scorecards for each local authority, which will then be updated annually when new data become available.  The scorecards will highlight key indicators for how swiftly local authorities place children in need of adoption and how swiftly they and adoption agencies deal with prospective adopters.  They will allow local authorities and other adoption agencies to monitor their own performance and compare it with that of others.  Because comprehensive national data on timeliness for prospective adopters will not be available until autumn 2014, the scorecard will focus initially on local authorities and the adoption process for children.  In the interim, we will assess the timeliness of the prospective adopter’s journey in a cross-section of adoption agencies as they prepare to implement
the new training and assessment process. From 2014, the scorecards will include data on prospective adopters and will be published for all adoption agencies so that they can
compare their performance in relation to timeliness with each other (see figure 1 below).

98.The first key indicator will relate to the overall experience of a child who is adopted. It will measure the average time it takes for a child who goes on to be adopted from enteringcare to moving in with his or her adoptive family.  The local authority leads this process, working with the child, the birth parents and the prospective adopters, but they share the responsibility for parts of this process with the other agencies in the family justice system,  including the courts and Cafcass.  Where this indicator signals weaknesses in the family justice system in a local area, this will be tackled both through the work of the Family Justice Board at national level and the Local Family Justice Operational Boards.
99.The second key indicator will look at the same period, but identify the proportion of  children who wait longer for adoption than they should.  It will help ensure the scorecard takes account of children still waiting, as well as those who have already been adopted – and allow us to act quickly if a large number of children seem to be stuck in the system in a particular local area.
100. The third key indicator will test the speed and effectiveness of family-finding.  It will measure the average time it takes for a local authority to match a child to an adoptive family once the court has formally decided that adoption is the best option.  Family finding is a part of the adoption process which is the sole responsibility of the local authority so this indicator will always give an undiluted picture of their performance.  We will measure the time it takes to match a child, rather than for the child to move in with their new family because we recognise that a smooth introductory phase is vital and will be different for each child. As we set out in chapter one, family-finding should begin as soon as a child is identified as needing adoption, and run in parallel with other parts of the adoption process. In many cases, prospective adopters should be ready and waiting
for the child when the placement order is made.
102. The introduction of the scorecard does not mean that we are asking adoption agencies to focus on the timeliness of adoption to the exclusion of everything else that makes a difference to a child’s adoption.  It is designed to incentivise the adoption system to give timeliness greater attention than it previously has.  We don’t want it to distort local authority decisions about whether adoption is the best option for children, for example by discouraging them from placing some children for adoption – such as older children, those in sibling groups or those with complex needs.  Both the Department, in looking at local authority performance in relation to the scorecards, and Ofsted in their inspections, will take account of and give credit to local authority efforts to place childrenfor whom it is difficult to find a family.  We will therefore include amongst the additional
information the numbers of older children being adopted, and the numbers of children where the local authority initially decides adoption is the best option, but revisits and changes that decision before the child is adopted

The overall target – there’s a recognition that one can’t make immediate dramatic transformations, and it is more stepped

. Initially, our performance threshold for the child’s journey overall will be twenty one months.  Within four years, it will be fourteen months. The threshold for the family finding indicator will be seven months initially, moving down to four months within four years. We will keep these thresholds under review as we develop and implement the changes to the adoption system set out in this Action Plan and elsewhere.  Achieving this level of transformation will help protect thousands of children from the harm associated with delay and instability

What’s at the end of the stick, Vic ?   (as usual, it is Ofsted, the paragon of good practice everywhere. Sorry, my SARCASMLOCK button got pressed accidentally there) Note the really big stick in my italics at the end.

105. In line with our general approach to local government, we expect the sector to lead efforts to ensure local authorities and the family justice system improve in line with these minimum expectations through its own improvement mechanisms.  However, given the vulnerability of these children and the current levels of under performance, central Government can and will intervene where necessary.  The indicators alone do not give a full and authoritative picture of local authority performance so there will be no automatic link between the performance thresholds and intervention. Where local authorities are below one or both of the thresholds, we will look at further information from the performance tables and from Ofsted reports to get a fuller sense of the results they achieve for the children in their care. We will, for example, look at whether poorperformance against the indicators reflects the complex needs of the children being placed for adoption, as opposed to failings in the local authority’s family finding.  We will also consider to what extent a local authority’s performance is already showing signs of improvement, even if the threshold has not yet been met.  Where this exercise substantiates performance concerns triggered by the scorecard indicator, we will have conversations with local authorities about their performance. Ultimately, we will consider where we may need to intervene in order to ensure that local authorities are providing an adequate service to children in need of adoption.
106. Where we need to intervene in the interests of children, we will use improvementnotices to require authorities to take specific action to improve their performance within set timescales. Where performance remains poor and the evidence suggests an authority will be unable to improve its own performance sufficiently, we will not hesitate to use our statutory powers of intervention.  This might involve, for example, directing local authorities to outsource all or part of their adoption service to another higher performing local authority or voluntary adoption agency with a strong record

My overall impressions – not as bad as I had feared – the document has clearly had input from people who have actually had something to do with adoption, rather than being a top-down this is what the Daily Mail will like hatchet job, and whilst I don’t necessarily embrace all of how they want to achieve their goals, the goals themselves are laudable. This reads to me like a genuine attempt to address problems, rather than the Politicians Syllogism  (1. We must do SOMETHING. 2. THIS is SOMETHING. 3. Therefore we must do THIS)

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who assesses the assessors?

Posted on March 14, 2012 by suesspiciousminds

Always nice to get a little Alan Moore / Juvenal nod into the title if you can.

The Family Justice Council report on the quality of expert psychologists used in care proceedings (as trailed on Channel 4 news) is up .

You can find it at http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf

They looked at 126 reports from 3 courts, and used four independent assessors to judge the quality of the reports, both against the guidance of the CPR and a piece of American caselaw (which I have to confess was unfamiliar with me until today) giving guidance on the construction of expert reports and their own views as to the quality of the report. They found, as you may have heard, that :-

 One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.  Only around one tenth of instructed experts maintained clinical practice external to the provision of expert  witness  work.   Two thirds  of  the  reports reviewed were rated as “poor” or  “very poor”, with one third between good and excellent.

Without wishing to be unkind, my preliminary view is that they’d obviously got  a particularly strong batch. I have found most psychological reports to be a blend of regurgitation of information already found elsewhere, a statement of the bleeding obvious, recommendations plucked from thin air and if you’re particularly lucky a hefty dose of God Complex thrown into the mix.   [I would add, however, that if you get a really good psychological report, it sings, and makes the gulf in quality even more visible. I’ve got a few psychologists, who are always snowed under and have huge timescales, but always, without fail produce a report that adds something worthwhile to the process. Sadly, their numbers are dwarfed by the people who tell you very little, and take 160 pages to do it]

Here are some of the particular issues that the report considers have been problematic with psychological assessments : –

Research has identified a range of criticisms of psychological reports in general.  These  include occasions where:
Psychological evidence has been presented as scientific fact when in fact it is speculation and conjecture 

There has been an absence of psychological theory;


Evidence has been provided concerning concepts which are not accepted within the field and have not been demonstrated empirically.  At times this has had a negative
impact on the outcomes of proceedings (e.g. with one of the most heavily criticized concepts being that of „recovered memory‟)

There has been a failure to provide evidence which is outside the knowledge of the typical judge or juror  

Psychometric evidence has been submitted as scientific fact when it does not meet the criteria for this (e.g. Daubert criterion).  Rather the evidence  has represented
specialised knowledge at most, with some submitted psychometric evidence based on research and not clinical assessment tools

An over-use of psychometrics, not all of which are applicable to the case being assessed.  Over-use of jargon and speculation, with poor content and style and a
failure to include the data from where inferences are drawn 

The credibility of the source has not been included, with no attempt  made  to evaluate the reliability and validity of the methods used to collect data

Psychological risk assessments have focused on first and second generation approaches (e.g. unstructured clinical and actuarial) as opposed to the more reliable
and valid third generation approaches (structured clinical, with or without actuarial anchoring)

Allegations have been reported as facts

Emotive terms have been applied where these could prejudice a decision

They found that 29% of the reports provided insufficient facts and moved ahead to a conclusion. That 22% had significant missing data but still expressed a conclusion.

To illustrate examples concerning missing data, these are as follows:
– Reports on more than one child which failed to include the data on all children but still cited an opinion on all the children;
– Reports drawing conclusions which have not been mentioned in the report, as noted by one reviewer: “Indicates in conclusion that any individuals assessing this
client should be knowledgeable of Aspergers type characteristics and the impactof this on parenting.  This was never mentioned in the report, or assessed, and
appeared as the last sentence” [rater comment].
– Reports where opinions are presented where data was completely absent, i.e.  “Comments on self-esteem, emotional loneliness, perspective taking, sexual risk,
but include no data” [rater comment].
– Reports where the data is completely missed, “Does not include fact section  –goes straight to opinion” or “cites psychometrics but no scores” [rater comment].17
– Report citing opinion without conducting a formal assessment, “stated that client presented as being of average intelligence without deficits in comprehension or
expression, formal intelligence testing was not undertaken” [rater comment].  
Further examples were:  “he seemed, at times, to be quite a jumpy person with arousal levels higher than an average baseline.  No assessment completed of this”
and “did not assess for personality and yet draws opinion on it”.
– Refers to the opinion of another as their opinion, “Refers to someone else‟s report in response to an instructed question” [rater comment].

Ouch.

They then considered the conclusions against the main body of the report  (a particular bugbear of mine, since if you can’t tell why the conclusions have been reached, how is any professional supposed to explain to their respective client why the expert is with them or against them, and whether they should shift their own position?)
Specific background missing/unclear (1). 34.0 %
Limited opinion (2). 17.0 %
Opinion confused or not clearly explained (3) 17.0 %
No background, just opinion (4) 9.4 %
Some opinions, not linked to factors  (4) 9.4 %
Opinions not substantiated (6) 7.5 %
Questions not answered (7). 3.8 %
No opinion (8). 1.9 %

Okay, the “no opinion” at all has a pretty low score, but that probably still represents from that pool five families who waited for three or four months for a psychologist to help decisions about their future to be made and who got nothing more than an expensive Scooby Doo report  (shrug of shoulders, “I-dunno”)

They found that 60% of the reports had missed the requirements of the CPR for an expert report.

They give some examples of the expert straying into areas reserved for the Judge (I point this out, because in general I agree with the report, but I think the example given here is quite badly flawed and rather weakens some of the other criticisms  –  “I am of the view that these children have all suffered significant harm”   – the ultimate decision on that is of course for the Judge, but there are many, many times when an opinion from the expert as to that is helpful, and generally it is provided as an answer to one of the questions. That, I think highlights the difference between the reports commissioned under the CPR for civil matters and for children matters – the expert is there to help the Court with specialised expertise rather than as a ‘gun for hire’ as happens/happened in civil cases. )

But the report isn’t just a woe-is-me hatchet job, it does go on to make some recommendations. They are worth reading in full, but these are the ones that I considered to be very important

 That instruction of experts should be restricted to those currently engaged in practice which is not solely limited to the provision of court reports.  Only
approximately one tenth of the instructed experts were engaged in practice outside of court work.  This is not in keeping with the expectation of an “expert” as a
senior professional engaged in current practice, suggesting that courts are accessing those whose profession is now solely as an “expert witness”.   There
should be an expectation that  psychologists providing court reports should continue to hold contracts with relevant health, government or educational bodies
(e.g. NHS, Private Health, Prison Service, Local Authority etc) or demonstrate  continued practice within the areas that they are  assessing (e.g. treatment
provision).   This is a means of ensuring they remain up to date in their practice, are engaging in work  other  than assessment, and are receiving supervision for
their wider work as psychologists.  Connected to this, courts should be wary of experts claiming to complete excessive amounts of independent expert work.

 That the instruction is clearly for the expert to conduct all aspects of the work and not graduate psychologists or assistants.  Such individuals are not qualified with
the term „graduate psychologist‟ used to describe those who have completed approximately one third of the required training (e.g. an undergraduate degree in
psychology and nothing more).  There was evidence of their over-use by experts,who were relying on them in some instances to review collateral information and
interview clients.  Courts should only be paying for the expert witness to complete all aspects of the report


Care should be taken with the use of psychometrics and these should not unduly  influence final judgments.   The current research indicated a wide range of such
assessments being used and not all relevant or up to date.  If tests are utilised then experts should be providing  courts with sufficient information to allow them to
judge their quality.  Using the Daubert criteria as a reference for this would assist with the quality of this information (e.g. provision of error rates, evidence of the
theory or method the test was based on), and assist courts to judge how it should be admitted as evidence.

A need for psychologists to provide provisional opinion and alternative opinions.  

The data from which opinions are drawn needs to be clearly indicated to the court.

The use of tested and/or generally accepted psychological theory to support core findings.    Courts are paying for  psychological assessments and this should be
evidenced to distinguish the opinions from those provided by other disciplines

(Hallelujah to that last one.)

The report doesn’t really get into the other side of the coin, which is – are we asking psychologists routinely to assess parents when it is not the right sort of assessment? When I started, psychological assessments were confined to cases where there was some unusual feature or behaviour and the professionals simply couldn’t understand fully and called in a psychologist to advise on that aspect  (I would add that the professionals at that time would have generally been a social worker very skilled and experienced at assessing families rather than a ‘commissioner of assessments’ and an old-school guardian whose role was to dig into the LA work with the family and see if things ought to have been, or could have been, done differently).  Now, a psychological assessment is routinely considered in neglect cases, where common sense tells everyone concerned that the problems are either motivation, lack of comprehension of what is needed to run a family in a non-chaotic way, or exposure as a child to poor parenting and thus no internal models of how to parent.

We go to psychologists when a social work assessment is what is needed. It is one of my main bugbears with both the Family Justice Review and the LSC cost-caps, that the ISW reports which are independent, swift, cost-effective and actually genuinely informative are sneered at and undermined and costs slashed to the point of extinction, whereas the bloated and we see often of varied benefit escape that exercise.

Rant over !

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The Banality (and relative rarity) of evil

Posted on March 11, 2012 by suesspiciousminds

I suppose if you asked a member of the public whether evil was to be found in any of these groups :- politicians, estate agents, journalists, people who abuse children and lawyers; once you got past the obvious barbed remarks, there would be a consensus that there is one group where you might actually expect to find it, not just in the worst outliers of that group but diffused throughout.

I haven’t ever kept numbers, but I think I’ve probably done over three hundred care cases over my long and undistinguished career.  And I would say that I have come across more evil than the average person, but substantially less than you might expect, given that every single one of those cases has involved a parent subject to at least a suspicious of harming harmed (or doing something that would cause a risk of harm) to their child.  Of course, some of them are exonerated by the enquiry and either did nothing wrong (the suspicious-looking injury turned out to be an accident, the unpleasant allegation turns out to be fabricated, the evidence of neglect turning out to be something more akin to an evidence that different people have different standards), but that doesn’t account for all that many of the cases – probably 20 or so?

The vast majority of the cases I’ve been involved in – for Local Authorities and parents, have been with people who had changes they needed to make in their life, because they’d taken a wrong turn – whether that be drugs, alcohol, inability to cope, depression or in Wodehouse’s lovely expression “Mistaking it for a peach, having picked instead a lemon in the garden of love”.  Some of those people, when shown that the wrong turn was having an effect on their children they hadn’t realised are able to turn back, most want to and try their best but aren’t able to and some think that they don’t really have to make the choices between their children and something else that professionals are telling them they have to. Like the famous advertising maxim  “Fifty per cent of the money we spend on advertising is wasted, we just don’t know which half”,  you can never be sure of which family that resources and attention are being thrown at will respond, which of them will try but fall short, and which of them won’t really give their all thinking that they can have it all.

But actual evil?  Pretty rare. I would say that I have worked with probably 3 evil people in those 300, which, given that we are drawing from a group of people who had harmed, or were suspected of harming children is a tiny proportion. I have worked with more people who have brought about the deaths of children than I have evil parents.

I once visited a client, who I shan’t name, but had murdered some children; and whilst seeing her, was less than twenty feet away from Myra Hindley, who I think most people might come up with if trying to name a truly evil woman. She wasn’t platinum-blonde, defiant-eyed and black-lipsticked. In fact both of these two women would not have looked out of place in a mobile library. And that made me think of the banality of evil concept – that most people who do truly monstrous things are not necessarily what we in our head think of as being abominations, but are instead shockingly normal.

The Press never seem to get this – as we can see in the last year’s press coverage of the murder of Jo Yeates, it was felt acceptable to smear, vilify and identify a man as the likely killer for not much more than him having a distinctive physical appearance that the Press felt snapped closely into the model that they had in their head of what a killer would look like. They were utterly wrong, and nearly destroyed a man in the process, because he had unorthodox hair…

This whole disconnection between what people who do terrible things look and act like, and what we (persuaded by culture) think they look and act like, causes problems in care proceedings all the time. When we all know that paedophiles look like dirty old men in macs and that they would leap on a child and abuse them the second they got the chance, small wonder that vulnerable women faced with someone who looks like a regular person and who is kind to them, loving to them, and ‘wouldn’t hurt a fly’ and aren’t presenting like a slavering wolf drooling at the prospect of getting at the children find it hard to believe that the person they know could have done the things in the past that they’ve been accused of.  If we equate in the media all people who do awful things to children (and heaven knows I’m not defending the actions) as monsters, it’s no surprise that vulnerable mothers just think to themselves “If he had done those things he was accused of, he’d be a monster. I know him and he’s not a monster. So he’s been wrongly accused”

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Do you think I was born yesterday?

Posted on March 9, 2012 by suesspiciousminds

 

 

 

A headlong rush through some of the key authorities on establishing whether a young person is young enough to receive services from a Local Authority

These cases chiefly involve unaccompanied asylum seekers, because they are a debate about whether the young person in question is under eighteen at the time they present to a Local Authority requesting either support under section 17 of the Children Act or accommodation under section 20 of the Act, AND there being a dispute about whether the young person is under 18 or over 18  – UK or European nationals tend to have documentation which will establish that age beyond doubt, whereas it is common practice for unaccompanied asylum-seekers to either not have such documentation, or to have destroyed it (in order to make it harder to establish where they should be sent back to)

Sadly for anyone trying to remember these cases, nearly all of the case names involve Croydon   (alternatively, if one is trying to bluff their way through a conversation about age-assessment cases, saying “of course, the Croydon case deals with this point” is a sensible tactic)

Our starting point is with R (on the application of B) v MERTON LONDON BOROUGH COUNCIL (2003)

[2003] EWHC 1689 (Admin)

QBD (Admin) (Stanley Burnton J) 14/07/2003

Which creates for us the eponymous “Merton” assessment,  and the Court indicating that there had to be a solid evidence-based and documented assessment by the Local Authority of how they had calculated the age of the young person, and what factors they had taken into account

HELD: (1) Where it was obvious that a person was under or over 18 years old there would normally be no need for an extended inquiry into their age. However, where, as in B’s case, a UASC could not provide any reliable documentary evidence to support his claim to be a minor, the determination of his age depended on the credibility of the history given, his physical appearance and his behaviour, factors which all interconnected. There was no statutory procedure or guidance issued to local authorities as to how to conduct an assessment of the age of a person claiming to be under 18 for the purpose of deciding on the applicability of Part III of the 1989 Act. Nor was there any reliable scientific test to determine whether a person was over or under 18. (2) It would be naive to assume that a UASC was unaware of the advantages of being classified as a child. A lack of travel documentation, including a passport, may justify suspicion, particularly where he claimed to have entered the country overtly in circumstances, for example through an airport, where a passport would be required. The matter could be determined informally, provided that minimum standards of inquiry and fairness were ensured. The decision-maker had to seek to elicit the general background of the UASC, including his family circumstances, his educational background and his history during the previous few years. Ethnic and cultural material might be important. A decision-maker would have to ask questions to assess a UASC’s credibility where there was reason to doubt it. It was not useful to apply notions of a burden of proof to the assessment. (3) A local authority’s social services department should not merely adopt a decision made by the Home Office, although it could take into account information obtained by the Home Office. (4) Merton had made its own assessment as to B’s age and not solely relied on the Home Office’s stance. The decision-maker’s reasons were inconsistent with the decision letter. However, it was permissible for the court to consider those reasons (Nash v Chelsea College of Art & Design (2001) EWHC 538). The evidence before the court represented the true basis of the decision and those reasons were adequate. A UASC was entitled to know the true reasons for an age assessment decision so that he could make an informed decision on whether to ask a local authority to review the decision or to make a complaint. The reasons did not need to be long or elaborate: it would have sufficed for the decision-maker to inform B that the decision was based on his appearance and behaviour and on the inconsistencies in his history which had made the decision-maker doubt his credibility. (5) The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this. Some cases would require more inquiry than others. The court should not be predisposed to assume that the decision-maker had acted unreasonably or carelessly or unfairly: it was for a claimant to establish that a decision-maker had so acted. It was not necessary to obtain a medical report. Nor was it necessary for a local authority to support a UASC for a period of days or weeks to give others an opportunity to observe him, if the information available was sufficient for a decision about his age to be made. It was greatly preferable for an interpreter to be physically present in an interview. Verbatim notes of an interview were also useful, although not essential as a matter of law. Such notes did not have to be counter-signed by a UASC. Procedural fairness required that a decision-maker explain the purpose of the interview to a UASC. (6) If a decision-maker formed the preliminary view that a UASC was lying about his age, he had to be given an opportunity to address the issues that led to that view (R (on the application of Q) v Secretary of State for the Home Department (2003) EWCA Civ 364). The decision-maker had failed to give B such an opportunity. Merton failed to establish that B’s responses could not have reasonably altered the decision. There was not a suitable alternative procedure for B to challenge the decision: there was no evidence about Merton’s complaints procedure; moreover, any complaint under s.26 of the 1989 Act would have been too slow for a child without accommodation or support. Therefore Merton’s decision had to be set aside and Merton had to reassess B’s age.

I note, with grim interest, this part of the Merton decision… “The court should not impose unrealistic and unnecessary burdens on those required to make decisions such as this” sadly, this is a custom more honoured in the breach than the observance.

There were other cases prior to Merton, but this was the big one, where the Courts made a solid attempt to get to grip with the issue of young persons asking for services and Local Authorities refusing on the basis that they appeared to be older than the group who were entitled to such services.

If the Courts felt that Merton  (do a good Merton assessment, make your decision, and it won’t be judicially reviewed) would put an end to the flood of judicial review challenges, on age assessments, they were sadly wrong.

There was litigation about medical evidence, about whether medical evidence was of any use at all, about whether the Local Authority had given enough weight to the medical evidence even though it was fundamentally not of assistance (there being finally acceptance that when deciding if a young person is 17 or 19, a medical test that is only accurate to within 2 years doesn’t help  – if one ever needs to argue this, R v Croydon –of course, helps R (on the application of R) v CROYDON LONDON BOROUGH COUNCIL (2011)[2011] EWHC 1473 (Admin) QBD (Admin) (Kenneth Parker J) 14/06/2011), and every single inch of the Merton assessments as lawyers nobly representing young persons sought to establish that the LA decision not to provide their client with services was “Wednesbury unreasonable”

There then came the decision of the Supreme Court, which knocked on the head any talk of ‘unreasonableness’ and judicial review, and determined that if there was a dispute between the LA and the young person about their age, this was a decision to be made by the Court.   (This had the, one hopes, inadvertent effect of massively expanding the number of potential cases, since one no longer had to show the Court that there was reason to believe the LA had been unreasonable in their age assessment, but just that the young person disagreed with it)

R (on the application of A) v LONDON BOROUGH OF CROYDON (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) : R (on the application of M) v LONDON BOROUGH OF LAMBETH (Respondent) & (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) CHILDREN’S COMMISSIONER (Interveners) (2009)

HELD: (1) In s.17(10) a clear distinction was drawn between whether a person was a “child” and whether that child should be “taken to be” in need within the meaning of the Act. That suggested that they were two different kinds of question. “Taken to be” imported an element of judgment which Parliament may well have intended to be left to the local authority rather than the courts. But the word “child” was undoubtedly defined in wholly objective terms, however hard it might be to decide upon the facts of the particular case. It admitted only one answer. As stated by Scarman L; where the exercise of an executive power depended upon the precedent establishment of an objective fact, the courts would decide whether the requirement had been satisfied, R. v Secretary of State for the Home Department Ex p. Khawaja [1984] A.C. 74 considered. Whether a person was a child for the purposes of s.20(1) was therefore a question of fact which must ultimately be decided by the court. (2) (Obiter) Those conclusions made it unnecessary to come to any firm view on the application of art.6 to decisions under s.20(1) of the Act. The House of Lords in Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 A.C. 430 had been content to assume, without deciding, that a claim for suitable accommodation under the homeless provisions of the Housing Act 1996 was a civil right, but no Strasbourg case had yet gone so far, Begum considered. In the instant case, the court was reluctant to accept, unless driven by Strasbourg authority to do so, that art.6 required the judicialisation of claims to welfare services of the kind in M and X’s case. If the right to accommodation under s.20(1) was a civil right at all, it rested at the periphery of such rights and the present decision-making processes, coupled with judicial review on conventional grounds, were adequate to result in a fair determination within the meaning of art.6, Tsfayo v United Kingdom (Admissibility) (60860/00) (2004) 39 E.H.R.R. SE22 considered.

[It is worth noting that the Supreme Court also went on to determine that a person seeking a challenge to the LA about accommodating them did not trigger article 6 of the Human Rights Act – at the time, this was probably academic, but now that the free legal advice provisions that enabled all of this litigation to be brought may vanish, it becomes more relevant. ]

It is settled law that when approaching this task, the Court is not bound by any decision of other tribunals as to their resolution of age-assessment conflict, though they may take them into account

R (on the application of PM) v HERTFORDSHIRE COUNTY COUNCIL (2010)

[2010] EWHC 2056 (Admin)

QBD (Admin) (Hickinbottom J) 04/08/2010

A local authority assessing the age of a young asylum seeker was not bound by an age assessment that the First-tier Tribunal (Immigration and Asylum Chamber) had made while hearing the asylum seeker’s asylum appeal.

The approach to be followed

 

Mr Justice Holman was the first judge to really grapple and set some guidance for the brave new world of Judges no longer just deciding whether the LA had behaved unreasonably, but actually deciding how old the young person in question was.  [Note that Mr Justice Holman ruled that the medical evidence was admissible into the fact-finding hearing, notwithstanding the earlier criticisms of it in the Croydon case referred to above, and also that he considered the cases to still run on a judicial review model, with permission being required]

R (on the application of F) v LEWISHAM LBC : R (on the application of D) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interested Party) : R (on the application of Z) v GREENWICH LBC : R (on the application of C) v CROYDON LBC : R (on the application of S) v SOUTHWARK LBC (2009)

[2009] EWHC 3542 (Admin)

QBD (Admin) (Holman J) 17/12/2009

HELD: (1) The approach to disputed age cases had been clarified by the Supreme Court. There still had to be an assessment by the local authority; judicial review was the appropriate mechanism and remedy for any challenge to that assessment and on any judicial review the essential issue was one of pure fact for the court, Lambeth LBC followed. The instant cases would be listed for a fact-finding hearing to determine whether, on the relevant date, C were children and if so, their date of birth. Once the court was required to engage on determination of whether a person was, on the relevant date, a child, it had to go on to make its own determination as to actual age or date of birth. (2) Proceedings such as the instant cases remained firmly proceedings for judicial review. Accordingly, permission was required before the claim could proceed. The relevant test for the grant of permission where the person had been assessed as over 18 years of age on the relevant date was whether there was a realistic prospect that at a substantive fact-finding hearing the court would reach a relevant conclusion that the person was of a younger age than that assessed by the local authority and was on the relevant date a child. Where a local authority had assessed the person as under 18 years of age on the relevant date, the test was whether there was a realistic prospect that the court would conclude that the person was of a younger age than that assessment. (3) The standard of proof in all such cases was the ordinary civil standard of the balance of probability. As to the question of where the evidential burden lay, that was entirely a matter for the judge at a final hearing and might depend on the facts and circumstances of individual cases. (4) If local authorities wished to defend cases by reliance on assessments of their social workers, then they had to produce those social workers for cross-examination if required. (5) Fact-finding hearings could not ordinarily take place without some involvement of the claimant and the engagement of the claimant with the court as, in most if not all cases, there was some issue as to the credibility of the claimant and the account that he or she had given regarding their history. However, the extent to which, and manner in which, a claimant participated or gave evidence was quintessentially a matter for the judge. (6) A major issue in such cases had been whether a decision of the local authority not to take into account medical evidence rendered the underlying decision regarding age assessment vulnerable to judicial review. There was nothing in the judgment of Collins J to indicate that such medical evidence was so unreliable or so unhelpful that it could simply be ignored altogether. The evolution of the approach to be taken indicated that such medical reports could not be disregarded by local authorities or by the court, Croydon LBC considered. Therefore, in the instant cases in which there was already such evidence, that evidence could be admitted into the proceedings and relied on.

Mr Justice Garnham QC developed this practical guidance further, in that the Court was not obliged to nail their colours to the mast on a firm date of birth, but rather to assess what was the most likely of a range of dates proferred.

R (on the application of N) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 862 (Admin)

QBD (Admin) (Neil Garnham QC) 16/03/2011

HELD: (1) A declaration as to a person’s date of birth could not be granted as a matter of course, especially in circumstances such as in the instant case where the declaration had potential effects on third parties who were not before the court, including the Home Office. Such a declaration would only be appropriate after careful consideration of the evidence. A court had to exercise an original jurisdiction and determine the precedent fact of whether the claimant was a child, and if so, his date of birth, for which the standard of proof was the ordinary civil standard of a balanced probability, R. (on the application of A) v Croydon LBC [2009] UKSC 8, [2009] 1 W.L.R. 2557 followed and R. (on the application of F) v Lewisham LBC [2009] EWHC 3542 (Admin), [2010] 1 F.L.R. 1463 applied. A court faced with such a question was not considering whether it had been shown on the balance of probabilities that a particular date was the true date of birth, but making an assessment of the most likely date of birth after comparing a wide potential range of dates, MC v Liverpool City Council [2010] EWHC 2211 (Admin), [2011] 1 F.L.R. 728 applied. Where all other factors were equal, the date might well be the middle of the appropriate range, because proximity to error increased towards the extreme ends of the range (see paras 2-5, 9, 35 of judgment).

Burden of proof

There had been some debate about whether the burden of proof was on the young person (since they were claiming to be a child and entitled to services) or the Local Authority (since they were claiming that the young person in question was not entitled to the services)

The Court of Appeal determined last year in R (on the application of CJ (BY HIS LITIGATION FRIEND SW)) v CARDIFF COUNTY COUNCIL (2011)

[2011] EWCA Civ 1590   that the burden of proof was not on the young person to prove that they were under 18, reversing the decision that had been made in the High Court on the same case.

The High Court’s supervision of the exercise of jurisdiction by an inferior court, tribunal or public body was not an issue which could be resolved according to the private interests of the parties. The nature of the court’s inquiry under the 1989 Act was inquisitorial and to speak in terms of a burden of establishing a precedent or jurisdictional fact was inappropriate. Once the court was invited to make a decision on jurisdictional fact, it could do no more than apply the balance of probability to the issue. A distinction needed to be made between a legal burden of proof and the sympathetic assessment of evidence. In evaluating the evidence it might well be appropriate to expect conclusive evidence from a claimant but the nature of the evaluation would depend on the particular facts of the case. Where a range of powers and duties which were exercisable dependent on the age of an individual were raised in the same proceedings, it would be highly undesirable for contradictory findings to be made as to the existence of the precedent fact. The nature of the inquiry in which the court would be engaged was itself a strong reason for departure from the common law rule which applied a burden on one or other of the parties. The court, in its inquisitorial role, had to ask whether the precedent fact existed on a balance of probability

.

[It is worth noting, however, that in the particular case, notwithstanding that the young person did not have to prove that he was under 18, the Court of Appeal agreed with the conclusion of the High Court that the young person was in fact over 18 and thus not entitled to the services he was seeking. ]

On burden of proof – the Courts have also ruled that the issue of burden of proof should only arise where the matter is so finely balanced that it was only this that would tip the balance

R (on the application of U) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 3312 (Admin)

QBD (Admin) (Judge David Pearl) 14/12/2011

HELD: When considering an age-assessment case, a judge had first to examine all of the evidence that had been presented and try to arrive at an assessment of the person’s age. Only if it was a close decision would it be necessary to resort to the burden of proof,

Is the judgment on age assessment confined to the Children Act proceedings, or broader?

 

In R (on the application of MWA) v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) BIRMINGHAM CITY COUNCIL (2011)

[2011] EWHC 3488 (admin)

QBD (Admin) (Beatson J) 21/12/2011

 

The High Court found that the young person was over 18 and agreed with the Local Authority age assessment – disagreeing with two decisions of the Asylum and Immigration Panel that he was under 18.  (This of course poses an interesting internal dilemma, since the Court’s decision is binding for the purposes of the Children Act, but the AIP for the purposes of asylum and immigration, and the young person is currently occupying a state of flux akin to Schroedinger’s cat, being simultaneously under 18 and over 18. )

 

but, hoorah! The Court has also resolved this, by indicating the cases in which it is sensible for the age-assessment decision to be binding on everyone.

 

 

R (on the application of AS (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR)) v CROYDON LONDON BOROUGH COUNCIL (2011)

[2011] EWHC 2091 (Admin)

QBD (Admin) (Judge Anthony Thornton QC) 25/10/2011

it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone

I have found over forty reported cases on age assessments of unaccompanied asylum seekers, and those obviously don’t include any that are resolved by a Court but don’t have any particularly interesting or novel clarifications of points of law.  That includes seventeen in 2011 and thirty since the Supreme Court ruling.

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Respect my prior authoriteh !

Posted on March 7, 2012 by suesspiciousminds

 

“I guess one person can make a difference… but most of the time, they probably shouldn’t”   – Marge Simpson

 

I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority.  This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all”  and “the report to be filed and served by 1st April 2012”  to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”

 

 

If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”

 

Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.

 

Order :-

The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case.  In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than                (2 weeks time).  If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.

 

Skeleton

Case No: 

IN THE                                  COURT

 

IN THE MATTER OF

 

AND IN THE MATTER OF THE CHILDREN ACT 1989

 

B E T W E E N:

Applicant

-and-

 

1st Respondent

-and-

 

 

2nd Respondent

-and-

 

 

(by his/her/their Guardian)

3rd Respondent

 

_____________________________

Skeleton argument

Prepared by the Local Authority

______________________________

 

 

Brief background

 

 

Proceedings in relation to                                            were commenced on                          .  [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]

 

The concerns in the case relate to                                           as set out in the threshold document [page reference].

 

 

 

 

On [date] , the Court made the following direction relating to the instruction of an expert:-

 

 

 

 

Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority”  – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.

 

Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.

 

The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”

 

 

The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.

 

 

 

The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.

 

It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.

 

This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.

 

 

 

 

Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.

 

 

 

The law

 

 

Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.

 

That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably

 

CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)

 

[2004] EWHC 2529 (Fam)

 

In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision  (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.

 

It will be noted that the LSC played an active role within that case.

 

The principles in Calderdale were revisited in

 

LAMBETH LBC v S (2005)

 

[2005] EWHC 776 (Fam)

Fam Div (Ryder J) 03/05/2005

 

Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.

 

 

Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient)  :-

 

Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”

 

Paragraph 62 : –  “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”

 

Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”

 

 

 

 

 

 

 

 

 

The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party.  There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.

 

Court’s power to restrict expert evidence

25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.

(2) When parties apply for permission they must identify—

(a) the field in which the expert evidence is required; and

(b) where practicable, the name of the proposed expert.

(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party

 

 

The Court must consider, in any application to vary or discharge the original order :-

 

Section 1 (1) of the Children Act 1989  “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.

 

And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

 

The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)

 

 

It is submitted as a result of all that has preceded,  that :-

 

(a)    the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)

(b)   the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs  (pace Calderdale)

(c)    The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)

(d)   The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order.  (pace rule 25.4 (4) of the Family Procedure Rules 2010)

(e)    If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989

 

And that

 

(f)    the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.

 

 

The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.

 

In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.

 

In general, the Local Authority would suggest that where Prior Authority is  refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally.  The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.

 

 

 

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