Author Archives: suesspiciousminds

“Sunlight is the best disinfectant”

Posted on July 19, 2013 by suesspiciousminds

Transparency, openness and the family Courts, and the President’s proposal for changes.

 

The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.

 The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.

 There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.

 

If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners.  That is important even if it is only a few cases where these things are happening.

This is the DRAFT practice guidance, issued by the President on 13th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-b-draft-transparency-in-family-courts.pdf

 

 Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17th May 2013 is the pressing issue facing the family courts  (rather than financial meltdown, injustice etc)  http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf 

 

I am actually rather supportive of the transparency proposals.

 The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so.   [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]

 

Other categories of cases should have anonymised judgments available on request.

 

I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.

 

At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.

 

This proposal of all judgments being published will  be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.

 

It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.

 

It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.

 

I have 3 thoughts that come to mind :-

 

 

1. There does need to be some thought as to how these cases will be searched for or stored on Bailii  – the signal to noise ratio problem.  At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).

 

But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.

 

Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material? 

 

 

  1. In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary? 

 

  1. This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves.  Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers.  All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.

 

 

[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]

 

If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer?   That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.  

 

 

[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark  Compare The Counsel.   Simples]

 

 

None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.

 

 

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Doncaster, so much to answer for *

Posted on July 16, 2013 by suesspiciousminds

The report into the failings of Doncaster Children’s Services has been lodged and Michael Gove has announced that he accepts the recommendations to take responsibility for child protection away from Doncaster Council and give it to a new arms-length trust.

 The report is here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/212598/Ways_forward_for_children_s_services_in_Doncaster.pdf 

 There’s a good news article on the story at Community Care here

 http://www.communitycare.co.uk/articles/16/07/2013/119339/doncaster-children39s-services-outsourced-for-five-years-after-damning.htm

 

 The report then…to say it is damning is a wincing understatement. You really, really don’t want, when you are on special measures and have been regularly monstered by Ofsted, to have the independent review say things like this :-

 

“There is little hard evidence showing any improvement in the performance and outcomes of children’s social care services between the publication of the Ofsted Report in November 2012 and the beginning of this Panel’s work in April 2013.”

or this

 

“But, perhaps more importantly, our judgments, and the recommendations based on them, are derived from the history of Doncaster children’s services. As we have seen, there have been many attempts to tackle the problems within the service, mostly involving changes of senior management similar to those currently under way, all of which have promised much, but have delivered little. If the lack of leadership or appropriate senior management was the problem, then we might expect the difficulties associated with Doncaster children’s services to have already been resolved. But despite numerous new leaders, significant additional resources and the many commitments to improve made by the Council’s decision makers, the problems remain. Fundamentally the problem seems to be one of culture: there is a culture of failure and disillusion that pervades the service and that serves to obstruct every attempt at reform”

 

I’m not going to comment on whether the review is a fair one or not, I simply don’t know enough either way. Nor do I have any axe to grind, I don’t know anyone at Doncaster to say that they are good or bad.  I feel sorry for the individuals working there, and of course the families that are working with the department.

 

Nor is it abundantly plain to me that simply detaching the service from the control of the Council and giving it a new name will fix these problems. There’s a horrible cycle you can get in when you are at a Council with a bad reputation for child protection – your best social workers leave, the ones you are interviewing for new posts aren’t really that keen on joining up, and the ones who stay can feel ground down and disillusioned. I imagine that Doncaster, for the last few years, hasn’t been a fun place to work, and I would hate people to go away with the depression that its workers are no good. I think there’s far, far more to it than that.

 

But it is a startling state of affairs that as a result of this report and Michael Gove’s response to it, that child protection services in Doncaster will no longer be run by local government but to an outsourced independent trust, and that this will be for the next ten years  – there’s a review after five years to see whether Doncaster Council should get it back  (but I can’t see how, given that they will no longer have any managers or staff in the interim, they can demonstrate that they are in better shape in five years then they are now)

 

I was going to say that it was a unique state of affairs, but I suspect that this may not be the case for that much longer. It is unique today, it may not be a unique solution this time next year.  [There’s a very large city in England that has had a spate of child deaths and serious case reviews and has gone through Directors of Children’s Services and poor Ofsted reports, for example]

 

This is also a clear indication that all of the sabre-rattling about adoptions and councils who don’t hit the Government aspirations about pace of adoption and approval of adopters IS going somewhere. There’s a lot of sabre-rattling, but there’s definitely a sabre in there.

 

Doncaster was of course famously one of the first Local Authorities to take the view that it was okay to have a Director of Social Services who had never done any social work, or managed a social worker or knew anything about social work, or indeed local government work, or education work, or work involving children. The background in question being managing a frozen food company. That was back in 2004, that person leaving in 2007.

 

“Management skills are management skills” was the mantra, and a belief that those core transferrable skills of managing were more important than knowing anything about the service that’s being managed.

 

Perhaps it turns out that this is true when you’re dealing with groceries – there’s not much difference managing Asda and Tescos, but maybe you can’t simply move from frozen Mini-Kievs to Social Workers.   In defence of that Director, the report suggests that there hasn’t been a turnaround since various changes in the head of the service.

 

 

How is the shift from local government to the trust going to work?

 

Well, the new service will start in April next year.  It won’t be controlled by Doncaster Council, just funded by it, and the Director of Hackney’s social services department will be the “commissioner of Children’s services” for the new trust ( one might think he would already be pretty busy running Hackney).

 

The start-up costs and funding aren’t clear, and nor is it clear what will happen to all the existing staff and management. Ordinarily, if a Local Authority tendered out its services, TUPE would bite on existing staff and they would either transfer across on protected pay and conditions or be made redundant. You’d need to be an employment lawyer to have any idea what happens when it isn’t a tendering out, but a ripping out of the service by central government.  My best guess is that TUPE still bites.

 

Or indeed what happens to the £1.8 million contract Doncaster Council had just entered into with IMPOWER to provide some key children’s services functions.

 

What happens if the new trust overspends its budget? Can they come to Doncaster Council and ask for more resources? Who will SET the budget? Will it be set by Gove, with a figure for how much it will alter each year? What happens if/when Gove is not the responsible minister for setting that budget? Or is the budget set by Doncaster Council? And if so, can they make cuts if they are under budgetary pressure elsewhere?

 

Who is responsible if someone sues for negligence? Does Doncaster’s Monitoring Officer have any sway over the trust? Does the Local Government Ombudsman?

 

The report suggests that the trust should be owned by its staff. Well, that works brilliantly with a Mini-Chicken-Kiev factory, since the staff can share in the profits that are made; but the trust won’t be making any profits (or will it?) and thus why the hell would anyone working for children’s services in Doncaster through the trust want to part-own it? What’s the up-side for having shares in it?

 

 

And on a wider political basis of accountability, how comfortable do we feel with the idea that central government can take control of local services away from a democratically elected local council? This is thrown into even sharper focus when one realises that Michael Gove is obviously true blue Tory and Doncaster Council is firmly Labour.

 

[Doncaster’s problems with central government over this issue do massively predate the coalition government, to be fair, Labour were giving them a hard time too]

 

If the people of Doncaster think that that their council is not much cop at running children’s services, isn’t that really a matter for them and their ballot box?

 

Obviously something had to be done, if Doncaster was under such scrutiny for so many years and independent reviews kept finding the same problems. The Government can’t just keep saying  “If you don’t get better, something bad will happen to you” , eventually something bad has to happen. This is the equivalent of “If you don’t look after your toys, I’ll take them off you”

 

But somebody still has to look after those toys.

 

 

[* Yes, I know the Smiths song is “Manchester, so much to answer for” but if you can find a pop culture reference to Doncaster, let me know.  “Don-caster spell on you” is a bit tenuous, even for me]

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Good Samaritan

Posted on July 15, 2013 by suesspiciousminds

One of the sad things about law is that it often shows you people at their worst.

 You don’t often get cases about genuinely good people doing something brave and amazing. Legal cases are usually either about good people in tough spots or people who have done bad or foolish things, or even good people triumphing over the wickedness of the State.  When you read the facts of the case, although you don’t often envisage everyone in the case wearing a black hat, like the bad guys in a Western, what you envisage is more differing shades of gray – some light gray, some dark gray, and at most one person in a white Stetson, showing you that they are the hero. You don’t read a case and see a court room packed full of white Stetson-wearing participants. 

 Once in a while though, comes a case that doesn’t show you the bad side of human nature, but humanity at its best.

 

This is one of those. There is no bad guy in this story, no black hats. All of the characters are wearing white Stetsons.

Sad case, but it still made me feel that people, even in the combative white heat of Court proceedings, can sometimes all be good people. 

 

CM v The Executor of the Estate of EJ and Others 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1680.html

 

CM was a doctor and professor, driving home from work, when she saw a body in the street, EJ who had fallen from a building. CM stopped her car, got out and did what she could to save EJ’s life, sadly without success. There was, tragically, a lot of blood as a result of the fall.

 

When CM got home, she noted that she had abrasions on her palms, due, she surmised, to the regular washing of her hands at work with anti-bacterial gel. Given that she had broken skin on her hands and had been exposed to EJ’s blood whilst trying to save her life, CM had to contemplate the possibility that she had been exposed to serious blood-bourne diseases.

 

This would have an impact not only on her own health, but her ability to practice medicine, due to the risk of exposing patients to these diseases. It was therefore vitally important that CM learn whether EJ had any such diseases. In the meantime, she began a course of antiretroviral medication as a precaution, which made her nauseated and unwell.

 

The Coroner was willing for EJ’s blood to be tested, as long as there was consent to do so. The police tried to find EJ’s relatives and learned that they lived abroad and the closest that they could encounter was a cousin of the mother, OP.

 

OP wrote to the Coroner in these terms

 

7.     “It took a while for me to learn about the passing away of [EJ]. Her parents live [abroad] and they don’t know about the situation yet. I will be contacting them to let them know. Although I am not the legal next of kin, I will be the go between as I am the closest relative she has got here. Her mother is my first cousin and on her parents’ behalf I am willing to give my permission for the doctor who helped [EJ] at the scene to be provided with her blood sample. I would also like to take this opportunity to thank the said doctor for her efforts in trying to help [EJ].“

 

The Coroner remained concerned about whether that consent was sufficient for a legal basis for blood/tissue samples to be taken.  That is a legitimate concern, since the Human Tissue Act 2004 makes it plain that taking samples without consent is a criminal offence; not something the Coroner wants to become embroiled in.  (Like I said, no bad guys in this story)

 

 

  1. Human Tissue Act 2004
  1. Collection, removal, storage and use of human tissue (defined as material that has come from a human body and consists of, or includes, human cells) in these circumstances is governed by the provisions of the Human Tissue Act 2004; the 2004 Act creates a range of offences for removing, storing or using human tissue for purposes without appropriate consent. Under the 2004 Act the Human Tissue Authority (“HTA”) was established to regulate activities concerning the removal, storage, use and disposal of human tissue; the HTA has in turn published helpful Codes of Good Practice to which I have had regard when considering this application.
  1. ‘Consent’ is the fundamental principle of the 2004 Act, and the associated HTA Codes; consent underpins the lawful removal, storage and use of body parts, organs and tissue.
  1. The arrangements for removing, storing and using samples lawfully in these circumstances are to be found in Section 1, Section 3, Section 5, Section 53(1) and Schedule 1, Part 1(4) of the 2004 Act. It is not necessary for me to set out these statutory provisions in full in this judgment; put simply, when read together, these sections establish that consent is required for material (such as blood or human tissue) to be removed, stored or used for “obtaining scientific or medical information, which may be relevant to a person including a future person.”
  1. In the absence of requisite consent, the removal, testing, or storing of human tissue would be a criminal offence (section 5). As the HTA Code of Practice [1] makes clear:

“If there is no-one available in a qualifying relationship to make a decision on consent (and consent had not been indicated by the deceased person or nominated representative), it is not lawful to proceed with removal, storage or use of the deceased person’s body or tissue for scheduled purposes“.

 

 

  1. The sources of appropriate consent (in relation to the removal, storage or use of relevant human tissue of deceased adults) are set out in Section 3 of the 2004 Act. Where the person from whom the human tissue or blood is to be removed has died, ‘appropriate consent’ means:

i) his (or her) consent (if the consent was in force immediately before he/she died);

ii) if (i) does not apply, a person appointed to deal with the issue of consent in relation to the specific activity;

iii) if neither (i) nor (ii) apply, the consent of a person who stood in a qualifying relationship to him/her immediately before he/she died.

  1. In this case it is of course impossible to ascertain EJ’s wishes as to the removal, storage or use of her relevant human material, and there is no evidence that she had appointed another person as her ‘nominated representative’ in this regard. It is necessary therefore to consider those who fall within the relationship of ‘qualifying person’. These persons are listed in hierarchy with “spouse, civil partner or partner” uppermost in the list, through a range of family relationships (i.e. “parent or child, brother or sister … step-father or step-mother, half-brother or half-sister” etc) to “friend of long-standing” at the end of the list (section 27(4)(h)). The legislation provides that consent should be obtained from the person whose relationship to the person concerned is accorded the highest ranking (section 27(6)).
  1. In applying these principles, the person’s relationship with the deceased shall be left out of account if “having regard to the activity in relation to which consent is sought, it is not reasonably practicable to communicate with him within the time available if consent in relation to the activity is to be acted on.” (section 27(8)).

 

The Coroner can consent to tissue samples being used and taken in relation to the cause of death, but not for the benefit of third parties, which is what this would be.

 

Therefore, the Coroner, wanting to get the testing done to benefit CM (and her patients) but not wanting to commit a criminal offence or fail in the duties towards EJ, put the case before the High Court for guidance about what to do.

 

It won’t surprise you, given the tone of this story (and also knowing that the Judge was Mr Justice Cobb) that the Judge isn’t going to turn out to be a bad guy either.

 

The Court found that it wasn’t reasonably practicable to seek consent from EJ’s closer relatives, that OP was a person in a qualifying relationship for the purposes of the Human Tissue Act 2004, and that OP had genuinely consented to the taking of tissue samples from EJ to clarify the situation for CM, which was a deeply important one.

 

The samples were duly taken and tested. The Judge adds a post-script to the judgment to confirm that EJ was not suffering from any blood-borne diseases, meaning that CM was free from them and could resume care of her parents and end the antiretroviral medication.

 

A very tragic and sad case, but an unusual one in which everyone concerned had acted decently, nobly, selflessly, and lawfully throughout.

 

 

 

 

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It’s as plainly wrong as the nose on your face

Posted on July 15, 2013 by suesspiciousminds

In family cases now, is the appeal test “plainly wrong”  or “wrong?”  – Court of Appeal to grapple with this issue.

I remarked during my commentary on Re B, that I thought the Supreme Court might come to regret their decision that where an appellate Court is considering an appeal about threshold, there was no distinction between wrong and plainly wrong.

I didn’t think it might happen so quickly.

In Re BS (Children) 2013,  Permission was granted by MacFarlane LJ for an appeal from a decision of Parker J to refuse leave to oppose an adoption hearing, and it seems, from the reading of his decision, that he probably would have refused permission to appeal prior to Re B.

http://www.familylawweek.co.uk/site.aspx?i=ed114967

In particular, MacFarlane LJ felt that the issue of whether the test for appellate Courts now dealing with family appeals had lowered, in the light of Re B, from “has the applicant shown that the Judge was plainly wrong” to “has the applicant shown that the Judge was wrong”

The first of those two formulations has always been the test, and of course is a much higher hurdle, both in the appeal, and any application for permission. It reflects that with the majority of judicial decisions, a Judge might reasonably decide the case one way or another, providing that they give a detailed and reasoned judgment considering those things that are relevant and not considering things that are irrelevant, and applying the correct legal tests. With that in mind, a Court of Appeal can have all three Judges look at the case and think that they would have made a different decision to the original Judge, but still refuse the appeal, if the decision was within a reasonable spectrum of the decisions that the original Judge could have made. In essence, an appeal ought to be allowed if the Judge made a decision that on the facts before them a Judge could not have reasonably made.

You might well think that an appeal court ought to just decide if they think the judge got the case right, and that’s certainly a legitimate public debate to be had, but it isn’t what the law is.

Or at least, it wasn’t.

The problem with the Supreme Court hearing a case is that if they decide something, that can override any other previous decisions, and whilst they might, as in Re B, believe that they are making a very narrow qualification and adjustment to the law, it can result in far far bigger consequences.

Here’s what MacFarlane LJ said in the permission judgment

17. The short description of the matters I have in mind are as follows.  Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three stage test.  The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: “The second and third hurdle are conflated into one test”.  Then later in the next page of the judgment, she said again, “2nd and 3rd test have to be looked at together”.  I consider it is arguable that that displays an erroneous understanding of the test.  My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing.  That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge’s general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

18. The second reason for granting permission to appeal arises from Re B.  First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child’s parents do not consent to adoption.  Having read those judgments, and having read the Court of Appeal decision in Re W, I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court.  In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as “exceptionally rare” a parent succeeding in an application of this sort may no longer be tenable.  Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged.  Those are the very circumstances that trigger the jurisdiction under section 47(5).

19. There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

20. Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties.  Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge’s compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged.  Arguably such a review is, in my opinion, justified on the facts of this case.

21. Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was “plainly wrong” in refusing permission to oppose.  Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was “wrong”.  There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was “wrong”, then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed “wrong”.  That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

Let’s look quickly at what the Supreme Court decided on the issue of the test for an appellant Court on threshold

They refer to all of the important cases on the test for appellant courts – G v G, Piglowska .

The Supreme Court then drew a distinction between cases where the Judge was exercising a discretion (presumably meaning that in those cases, Piglowska et al still applied, and the formulation was ‘plainly wrong’)  and cases where the Judge was not exercising a discretion, such as in answering the question as to whether threshold was met

(The underlining in this quotation from Re B is all mine, and it may help in your reading if you imagine me raising my eyebrows on those bits)

44. On any view there is nothing discretionary about a determination of whether the threshold is crossed. I consider that in the Court of Appeal Black LJ was correct, at para 9, to categorise it as, instead, a value judgement, particularly, but not only, when the court is surveying likelihood. Black LJ proceeded to adopt the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited above, at para 56, that the question on an appeal against the refusal of a judge to hold that the threshold had been crossed was whether it exceeded the generous ambit of reasonable disagreement. In my judgment in that case, from the outcome of which I dissented, I asked, at para 34, whether it had been “open” to the judge to refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had been “plainly wrong” to refuse to do so. Although these are matters of little more than nuance, I consider in retrospect that in that case none of the three of us afforded sufficient weight to the evaluative, as opposed to the discretionary, nature of a determination whether the threshold is crossed. Ward LJ’s reference to the generous ambit of reasonable disagreement seems apt only to the review of an exercise of discretion, as in G v G. My own reference to whether the judge’s determination had been “open” to him now seems to me to have been singularly uninformative. Perhaps Hallett LJ came closest to the appropriate test in her reference to whether the determination had been “plainly wrong”. But it is generally better to allow adjectives to speak for themselves without adverbial support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative. Like all other members of the court, I consider that appellate review of a determination whether the threshold is crossed should be conducted by reference simply to whether it was wrong.

 

 

Given that the Supreme Court is binding on all of us, unless and until either Parliament changes the law, or the European Court of Human Rights says that the Supreme Court were wrong in Re B  (cough, cough), the effect of that passage is fourfold

  1. Indisputably, the test for an appeal about threshold is NOW whether the Judge was wrong, not whether the Judge was plainly wrong.
  1. As determining threshold often arises from the way a Judge determined FINDINGS of fact about an alleged injury or alleged abuse, an appeal about a Judge concluding that as a result of those findings, threshold is met, might well now be decided on “wrong” rather than “plainly wrong”
  1. The Supreme Court have developed a two tier test for appeals – one where the Judge was exercising a discretion (where they have to be plainly wrong)  and one where they are not (where they just have to be wrong)
  1. Given that the Supreme Court forgot to set out a test for which category any given decision would fall into, there is going to be satellite ligitation, as here as to which category the case falls into.

For what it is worth, my own view is that on the Re B  “plainly wrong v wrong” issue, the existing caselaw on refusing / granting leave to oppose an adoption order is extraordinarily plain that the Judge is exercising a discretion and thus I believe that it is untouched.

Having said that, I still cannot FATHOM why the Supreme Court considered that in determining whether threshold was met, the Court was not exercising judicial discretion, still less that this was the case “on any view”  and when one looks at what a Judge has to do when determining if given behaviour or allegations of such behaviour constitutes the threshold criteria, it is hard to argue that such process is markedly different to the test in the leave to oppose adoption (does the change warrant a reopening of the case).

I can see potentially that if a Court found that there HAD BEEN NO change in circumstances (the first limb of the test in leave to oppose adoption), post Re B, an appeal about that would probably be on the basis of whether the Judge was wrong, the second limb (given that change, is it in the child’s interests to reopen the case) would, in my mind, be on the basis of whether the Judge was plainly wrong.

But until the Court of Appeal tell us what they think about any suggestions that the Re B formulation will bleed out beyond simply threshold cases, we won’t know. Nor do we know whether that ‘wrong’ versus ‘plainly wrong’ formulation will bleed out into cases much wider than the Children Act 1989 and Adoption and Children Act 2002.

I remain amazed, that the Supreme Court ever considered that introducing a two tier test for appeals, and not clearly setting out how one is to sift categories, was something that they needed to do, or that it was ‘little more than nuance’

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Voice of the child in pre-proceedings work

Posted on July 13, 2013 by suesspiciousminds

 

Work done with the Local Authority and parents before the case ever gets to Court (and ideally with the view of the case never needing to come to Court) has been important for a few years now, and will become even more important when the new PLO comes in, and there’s even more emphasis on what happened before the case got into the Court-room.

 

There have been many people saying for a number of years, that not having a Guardian, representing the child’s interests and being either the check-and-balance to a Local Authority who may be being zealous or oppressive OR an independent person who is able to impartially communicate to the parents that they are in a perilous situation if improvements are not made, is a major flaw in the pre-proceedings system.

 

It is for that reason that a pilot was set up in Coventy and Warwickshire, to have a Guardian involved in pre-proceedings meetings between the social worker and the parents.

 

The pilot is complete now, and the report is available here http://www.cafcass.gov.uk/media/167143/coventry_and_warwickshire_pre-proceedings_pilot_final_report_july_4_2013.pdf

 

{There was a third pilot area, Liverpool, and there will be a report on that in due course}

 

The positive aspects of the pilot was that the diversion rate of pre-proceedings cases where a Guardian was involved was fifty per cent   (by diversion rate, they mean, cases that ended up with the problems being sufficiently resolved by the parents that the case did not have to go to Court).  That’s a decent figure, comparing favourably to the existing Masson studies of pre-proceedings work generally diverting about 25% of cases, and the other cases in the samples in those Local Authorities where Guardians were not involved.

 

 

Of the cases that do go to Court, are they dealt with any faster? Well, the sample sizes are frankly very small to draw conclusions from – one or two “long runners” could skew the figures very badly, but they do claim that the Pre proceedings cases where there WAS a Guardian (CAFCASS Plus) finished more quickly than the ones where there was not

 

The overall average (mean) duration of the care proceedings for the Cafcass PLUS cases (excluding the complex cases) is 36.3 weeks (based on 11 cases). The duration of the comparator cases is 42.6 weeks (18 cases). There is a distinct differencebetween the Warwickshire Cafcass PLUS and comparator cases in respect of careproceedings duration. There are fewer longer running cases (more than 40 weeks) in the Cafcass PLUS sample as a whole.

 

I really think the sample size is far too small to get excited about that. And actually, is the over-arching aim of having a voice for the child in pre-proceedings work speed of resolution, as opposed to fairness and getting the work done right?

 

 

The positive diversion rates, the pilot considers largely due to two things – (1) galvanising extended family members to assist the parents, and this seems to me to be a very laudable aim and (2) parents engaging in reparative work.

 

It would have been interesting to know whether the involvement of a Guardian either increased the reach out to family members OR somehow made it more likely that the family members ‘stepped up to the plate’. And also whether the reparative work was either better focussed, or the parents more committed to making use of it.    That would be something I would hope is focussed on more, if the pilot is enhanced in numbers.

 

This bit is interesting

 

However, the pilot also provides clear evidence that where cases progressed to court on an unplanned basis and local authority work is

incomplete, then the FCA was not able overturn deficiencies in pre-­proceedings practice.

 

[i.e, where the pre-proceedings work hasn’t been done very well, having a Guardian on board didn’t fix that. That seems to me rather disappointing, that’s clearly what one would hope that a Guardian would be doing during this pre-proceedings work, making sure that the LA did the work properly and covered all of the bases, with the benefit of that fresh pair of eyes and an independent pair of eyes.]

 

 

The pilot report raises some very good questions about systemic causes of delay, two of the four of which rest on the shoulders of the Courts rather than other professionals

 

Systemic factors include:

 

1. the enduring problem of variability in the quality of social work

assessment but equally failure of courts to recognise good social work

practice which creates something of a ‘chicken and an egg’ situation;

 

2. that a number of cases appear to enter the pre-proceedings process too late, such that the window for further assessment and attempt to effect change is missed and cases then progress to court on an

unplanned/emergency basis;

 

3. the difficulty of making effective decisions about, and providing effective support to parents with fluctuating mental capacity who are not deemed to warrant the services of the Official Solicitor;

 

4. difficulties in timetabling contested final hearings due to insufficient court sitting time and problems of co-ordinating the diaries of very busy

professionals.

 

 

The Official Solicitor issue is a perennial one, and becoming even more important as we have a hard cap of 26 weeks – if you can’t fairly work with parents or ask them to make decisions/agree assessments/sign written agreements because they don’t have capacity to do so, and you can’t get the Official Solicitor representing them until you are in proceedings, it will mean that all parents who lack capacity will have less time to turn their problems round than ones who do have capacity. That seems to me to be a decent Disability Discrimination case to run at some point.

 

The pilot report echoes many of the issues already raised in the Masson report about pre-proceedings work, chiefly the overwhelming feeling of professionals involved that the Court didn’t really pay any attention to it and that Courts simply routinely commission fresh assessments with the view that any parenting or risk assessment only counts if it takes place within Court proceedings.

 

 

Independence is an important issue – there’s an obvious risk that a Guardian who participates in pre-proceedings work that culminates in care proceedings being issued might be felt by the parents to have come to the care proceedings with a view of the case already formed  (rather than being completely fresh and impartial at the time that proceedings are issued)

 

The FCA’s Independence: was it in question?

The question of whether pre-proceedings involvement of the FCA compromised the FCA’s independence was raised by a range of stakeholders encountered during the course of this project. A review of parents’ statements did not reveal any concerns about this from their representatives in the Cafcass PLUS sample. The FCAs themselves stated that they did not feel their independence was compromised by

earlier involvement, they felt able to assert an independent perspective regardless of when they became involved in a case. Of course, in a small number of cases, because the FCA who was involved in pre-­proceedings had left the service, in actual fact the

case was then allocated to another FCA as described above.

 

 

[If you’ll forgive me, I’ll continue to use the word “guardian” rather than Family Court Advisor or FCA, I just don’t like it… I still miss “Guardian ad Litem” to be frank]

 

The report overall is positive about the benefits to be achieved by involving Guardians in pre-proceedings work.  I am afraid that given the costs and resources that rolling it out nationally would require, the pilot study would have needed to be much more glowing and triumphant.  And that in particular, it would have needed to show that Guardian involvement pre-proceedings had a real bearing on the success of cases being concluded within 26 weeks.

 

I think in the current climate and the agendas that are being pursued, I don’t see this pilot being positive enough to be rolled out. But it is still an interesting report and the issues that it touches on of just how hard hitting those 26 week targets will be until there is genuine systemic change are important ones.

 

 

 

[Voting link for Suesspicious Minds in the Family Law awards – you can vote for me – or any of the other candidates, who incidentally are not offering to save your life at some unspecified point in the future, here

 

http://www.familylawawards.com/ShortlistedNominees2012   ]

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Coughs politely, looks down at floor

Posted on July 12, 2013 by suesspiciousminds

 

Well, says Suesspicious Minds with a blush, it is very nice to find myself nominated for one of the Jordans Family Law awards, as Family Law Commentary of the year.

You can find the awards here,

http://www.familylawawards.com/ShortlistedNominees2012

and a bit of information about each of the candidates.  I was feeling a bit happier about being nominated until I saw the other people I was up against. I think it would be fair to say that I am at best a dark horse amongst some proper thoroughbreds there.

The voting is online, so I’d urge you to have a look at the candidates and have a vote if you like. You aren’t obligated to vote for me, you may well think that one of the other nominees are much more deserving of your support *.

*Although don’t vote for them, for goodness sake, I am just trying to be fair-spirited and nice, I don’t MEAN that you should vote for the others, unless they are like a godparent to your children, or once gave you the Heimlich manouvre when you were choking on a mushroom vol-au-vent.

  I am totally available to be a godparent to your child if that’s what it takes….  The Heimlich thing slightly more difficult to organise – frankly, if that’s your only reason for voting against me, I think you’re being a bit unfair, it is just sheer luck whether I happen to be in your radius at the appropriate time. Rest assured, I totally would save your life if the opportunity arose. Trust me.

 

Anyway, the main thing is that it is nice to be nominated, and hopefully we may see a few new people coming to the site to check it out before backing away quietly and hurriedly.

As I am being shameless this afternoon (self-promotion is a bit awkward to me, so am just diving into it  hard and then we’ll forget it ever happened), if you do read the blog and think that you know someone else who might like it, please pass a link on to them.  And feel free to post a comment up on anything that takes your fancy, there’s some lively debate here from time to time.

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Here comes my nineteenth nervous (adoption) breakdown

Posted on July 12, 2013 by suesspiciousminds

A quirky little case, considering what happens when an adoptive placement breaks down to the point where all concerned would really like to effectively delete the adoption order.

 Re W (2013)

 http://www.familylawweek.co.uk/site.aspx?i=ed114972

 

The child had obviously been subject to previous care proceedings, a Placement Order made and in due course an adoption order made. The adoptive placement with Mr and Mrs Y did not work out, and broke down. The child was moved by the Local Authority, with consent of the adoptive parents, to another foster placement and settled well there.

 The LA then had the issue of what to do about the child’s legal status. The only people who held parental responsibility for her were the adoptive parents Mr and Mrs Y  (by virtue of the adoptive order) and the birth parents no longer had any connection in law to the child.

 

Mr and Mrs Y did not want to have any contact with the child or any further part in her life, and were in agreement with the Local Authority that the best thing for the child would be for the adoption to be revoked.

 

Easier said than done. The only criteria for revocation of an adoption order under the Adoption and Children Act 2002 was not applicable here,

 

S55

  (1) Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order.
 

 

    (2) In relation to an adoption order made by a magistrates’ court, the reference in subsection (1) to the court by which the order was made includes a court acting for the same petty sessions area.

 

 

Clearly that wasn’t the reason for the adoption being revoked here, so it didn’t apply.

 

The case law also didn’t help, as the overwhelming thrust of the case law is that revocation of an adoption order should only be where the order had been made by fraud or mistake – the seminal case being Re B (Adoption : Setting Aside) 1995 1 FLR 1   – where a child was adopted when the adopters believed the child to be Jewish , but was in fact of mixed Catholic and Muslim parentage , causing considerable problems for the child in later life (the adoption had been made in 1959), and the Court determined that there was no jurisdiction to set the order aside.

 

The LA sought to persuade the Court to use the inherent jurisdiction to revoke the adoption order, on the basis that all parties were in agreement that this would be the best thing for the child.

 

The Court flagged up a number of issues that would arise from accepting that the Court potentially COULD use the inherent jurisdiction to revoke the adoption order :-

 

 

(a)   Should the child be separately represented?

(b)   Would there need to be an expert assessment of her?

(c)   Are the birth parents entitled to be served with the application? What impact might that have on the child?

(d)   The general public policy issues of expanding the circumstances in which adoption orders (which are by definition final and definitive orders) might be overturned.

 

 

The Court ruled that if it was contemplated that the adoption order might be revoked, that would necessarily revert the position in law to that of a Care Order, and thus the birth parents would re-acquire their parental responsibility, and thus it was inconceivable that such an application could be properly dealt with by the Court without the birth parents being involved.

 

The Court declined to use the inherent jurisdiction, and made a Care Order, which of course then shares parental responsibility for the child between the Local Authority and Mr and Mrs Y (who were clear that they did not intend to exercise PR)

 

This is an interesting little nugget at the end, and is, I think the first reported case where 26 weeks has played a part in the decision.

 

14. Turning then to the Care proceedings, as I say it seems to me to be of the greatest benefit to the child and all concerned that these are now brought to an end.  They have been running for getting close to what is now the 26 weeks ‘deadline’ under the new approach.  I have read the Care Plan dated 19th March 2013; there is no issue about the Threshold being met.  All parties agree that there is to be a Care Order and, in my judgment, the sooner it is made the better.  I shall therefore make it today.

 

Hardly controversial usage of 26 weeks, since everyone was in agreement that a Care Order was the right order.

 

A bit of a shame that the case did not address the curious little quirk of dealing with adoption breakdowns  – all of the duties on the LA to explore options for placement within the family still apply, but of course given that Mr and Mrs Y are the legal parents of the child, and the birth parents are not, those duties apply to the extended family of Mr and Mrs Y.

 

In reality of course, unless the placement has been long and enduring and then suddenly breaks down, it is pretty unlikely that extended family members of the adopters would seek to care for the child, since there is no blood relationship, but it is a curious little quirk and one I think a lot of people miss.

 

 

I think that this decision is correct on the law, but there’s potentially a deficiency in the law which needs to be addressed, where a child is legally bound to parents chosen for her by the State, when those adoptive parents cut their ties with her, but that legal relationship can’t be ended.

 

That’s a fairly unusual decision – most adopters tend to stay involved and committed to the child even after a breakdown, and I’d draw a distinction between those adoptive parents who continue to play a parental role and those whose involvement in the child’s life ends when the placement breaks down.

 

I’m never terribly fond of adopters who when the placement break down, have the ‘wash our hands of her’ approach. If you adopt a child, it isn’t like buying a cardie from M&S – you don’t just hand it back and forget the whole thing ever happened.   [I don’t know if that’s what happened with Mr and Mrs Y, but the judgment doesn’t read attractively to me]

 

Given that the child won’t be placed in another adoptive placement (or is unlikely to be), Mr and Mrs Y will legally be her parents for the rest of her life, AND the relationship with her birth parents which was severed in order that she could be placed in a permanent adoptive placement remains severed even though no such placement will be obtained.

 

As an issue of natural justice, it seems fairer to me for the position in law to be that the adoption order is revoked, and the situation revert to a Care Order, with the child being in foster care, and the birth parents Parental Responsibility being restored. If that means that they challenge the arrangements and apply to discharge the Care Order, then so be it.

That’s NOT how the law is, and this decision was right in law, but I don’t see that this sort of case is miles away from the ‘statutory orphans’ case. There won’t be anyone other than the State exercising PR for this child, and others like her.

 

If the child had been placed in long-term fostering (which is what will happen to her now), the birth parents would have retained parental responsibility and been entitled to be consulted on major decisions, to participate in Looked After Child reviews, and always had the opportunity to make an application to Court if they were sufficiently concerned about the Local Authority’s care of the child. 

In a case like this, where the actual care of the child BECOMES long-term fostering, as a result of circumstances, and there’s nobody exercising PR for the child other than the State, why should that be any different?

I don’t know if anyone in the case floated the issue of a declaration of incompatibility with the Human Rights Act, but that would seem to me the only thing missing from the judgment. If a child who is adopted, has legal ties with birth parents cut, then has the placement breakdown and can’t sever the legal links with adoptive parents who have washed their hands of her, that seems to me a gap in the law that warrants a change.

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Making costs orders against a non-party – is that the sound of floodgates opening?

Posted on July 11, 2013 by suesspiciousminds

The High Court have determined in Re HB, PB and London Borough of Croydon 2013, that a Court may legitimately make an order for wasted costs against an agency who was not a party to proceedings.

 

In this case, here http://www.bailii.org/ew/cases/EWHC/Fam/2013/1956.html  the wasted costs order was against a Local Authority who had been directed to produce a section 37 report in private law proceedings.  (Section 37 reports are where the Court look at a private law case and think “Hmm, this looks risky, the LA ought to investigate this and see if this case really needs to be public law care proceedings, instead of private law proceedings”)

 

The allegations in the case were pretty unusual

 

  1. 6.       i) Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;

ii) From early in OB’s life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;

iii) From early in OB’s life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;

iv) That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.

 

If those allegations were made out, of course there would be considerable concern about the risks posed by mother to the child and her care of the child.  (I pause a moment to question how a social worker alone is supposed to identify whether those concerns are made out…)

 

The section 37 report was directed and was five weeks late. Not ideal, but not the most delayed s37 report I’ve ever seen, not by a long chalk.

 

A ‘final hearing’ took place, at which a further section 37 report was directed. That report was four weeks late.

 

The LA did not seek to commence proceedings, and the social worker was pretty much put to the sword in evidence in the second ‘final’ hearing

 

  1. At the hearing on 10 December 2012, the evidence from the social worker, Mrs. O, contained the following exchanges:

Q:… the father says that the mother told him and family members that OB was unwell/that she exaggerated his illness?

A: Yes but I was given this case to look at contact and residence, and I went on the information in the GP records.

….

Q: … if it is the case that what the father says is true … then the mother was fabricating illness in OB?

A: Yes.

Q: And that would tend to indicate a risk of harm to OB wouldn’t it?

A: But the mother said that she did not say this, and the medical notes made no reference to fabricated illness.

…

Q: …If what the father says is true do you agree that this puts OB at risk of significant harm.

A: If it is true.

Q: …why do you say that the threshold is not met for the LA to apply for an interim care order?

A: I don’t know, the legal team would know. At the time we did not consider that OB was at significant risk of harm.

Q: What is the threshold for an ICO

A: (long pause) I would need to take legal advice.

…

Q: If findings are made against the mother at the end of the hearing what would your position be?

A: I would need to discuss that with the legal team.

Q: If the Judge finds the father’s allegations to be true, do you agree that OB would be at risk of significant harm?

A: I would need to discuss this with the legal team.

Q: If the court finds the father’s allegations to be true what would your recommendation be about contact and residence?

A: I could not make a decision without consulting with members of the legal team and my manager.

Q: So there has been no discussion about this so far?

A: No.

Q: When could you discuss this?

A: Tomorrow perhaps.

…

Q: Did you feel uneasy about the allegations raised by the father against the mother?

A: No I did not feel uneasy but it seemed that the father’s allegations were serious and I do not know why he would have made such reports against mother if they were not true, so I was confused.

  1. The social worker further informed the court of the following:

i) that she had had no training in relation to cases of fabricated illness;

ii) that she was unaware of the DCSF 2008 Guidelines, or the ‘Incredibly Caring Programme‘;

iii) that she had not spoken to OB’s General Practitioner;

iv) she had not visited OB’s school, nor enquired of the school what was known about OB’s health (“A: That was not my role. It was not relevant at the time…“; later: “we only visit school when carrying out a section 47 investigation“);

v) that she had not spoken to extended family members (even though the mother had made complaint to them of illness in herself and the child);

vi) that she knew that the child’s attendance record at school was 69.4% in the relevant period (A: “if a child is sick, he’s sick“), indicating that this attendance record was “ok“;

vii) as indicated above, that she did not know the test for an interim care order;

and

viii) that she had no experience as a qualified practitioner in this type of case.

 

 

To be fair to this social worker, none of the workers in her team had any experience of cases in relation to fabricated illness. Whilst they are pretty common in the rarefied air of the High Court, most Local Authorities go nowhere near them anymore – they are pretty toxic cases to run, post Cannings.

 

It didn’t seem to me massively unreasonable for Croydon to take the view that the allegations were being litigated in any event, that the Court was seized of the matter and that the right time to consider whether to issue care proceedings would be after the Court concluded a finding of fact hearing. (which, I note, still hadn’t happened, some eight months after father first raised the allegations of fabricated illness). The real issue with the s37 report is whether the LA should have been in the driving seat for that finding of fact hearing by issuing care proceedings. The Court clearly wanted them to be, but they didn’t seek to.

 

 

The High Court found that the failure of the Local Authority to ensure that the social worker who was dealing with a case of allegations of fabricated illness had any training as to that sort of case, knowledge of the key guidance or to seek legal advice.

 

  1. It follows from my findings above (and the concessions made), that the Local Authority failed to follow the DCSF Guidance; this is in itself a serious failing. In this regard, I reproduce and adopt for the purposes of this judgment the comments of Macfarlane J (as he then was) in Re X (Emergency Protection Orders) [2006] 2 FLR 701, generally at §67-§89, but in particular:

“[82] Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of ‘Munchausen’s syndrome by proxy’ or ‘factitious illness syndrome’ (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion.”

  1. The comments of McFarlane J are just as relevant, in my judgment, whether it is the Local Authority which is making the assertion of fabricated illness, or (as in the instant case), asserting that to the contrary there are no safeguarding concerns in a case where such allegations have been raised.

 

 

So, the Court found that the s37 report was deficient, and that the costs of the hearing that took place were at least in part a result of those deficiencies.

 

The next leap is to assert that the Court has jurisdiction to make cost orders against an agency who is not a party to those proceedings.  The High Court decided that the agency responsible for a section 37 report is “closely connected” with the proceedings, and thus the existing caselaw (from civil cases and one family case relating to experts) could justify a costs order

 

 

  1. I regard a local authority in a private law case in which a section 37 direction has been given as being sufficiently “closely connected” with the litigation to justify the order; by such a direction the court is expressly inviting consideration of the issuing of public law proceedings. It should be noted that when a section 37 order is made, the court also has the power (if the relevant ‘threshold’ is established under section 38(2)) to make an interim care order: see section 38(1)(b). Although this did not happen here, this power illustrates in my judgment the extent to which the court can, if it considers it appropriate, draw a local authority directly into private law process of this kind and underlines its ‘close connection’ with the subject matter of the proceedings.
  1. My conclusion on this aspect (§59 above) is amply justified by reference to other situations where ‘non-parties’ have been deemed to be ‘closely connected’ to the litigation, including insurers (see Palmer v (1) MIB; (2) PZ Products; (3) Royal & Sun Alliance [2008] EWCA Civ 46); directors (Secretary of State for Trade and Industry v Backhouse [2001] EWCA Civ 67 & Goodwood Recoveries Ltd v Breen: Breen v Slater [2005] EWCA Civ 414); liquidators and receivers (Metalloy Supplies Ltd (in liquidation) v MA (UK) Ltd [1997] 1 All ER 418, CA & Dolphin Quays Developments Ltd (In Administrative and Fixed Charge Receivership) v Mills [2007] EWHC 1180 (Ch)); tribunals (see Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760, ChD), and the Legal Aid Board (now Legal Aid Agency) (see Kelly v South Manchester Health Authority [1997] All ER 274).
  1. In this respect, Mr Jarmain has drawn my specific attention to the decision of Peter Smith J in Phillips v Symes [2004] EWHC 2330 in which it was held that the court had power to make a costs order against a non-party expert witness. Peter Smith J had held that:

“It seems to me that in the administration of justice, especially… it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court…

… The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice” [§94-§98]

  1. In my judgment Phillips v Symes survives (indeed is fortified by) consideration of similar (i.e. immunity) issues in Jones v Kaney [2011] UKSC 13.

 

 

Whilst I think Croydon were a bit unlucky in this case (effectively what had happened in reality was that the s37 request had just gone into a pile with all the other s37 requests, were allocated out and the worker did the report in the same way as any other one would have been done, rather than the LA recognising that this was a veritable hot potato and that a legal planning meeting to discuss the case should have been arranged)  I can see an argument that this was an exceptional case.

 

My concern would be Courts starting to dish out costs orders for late section 37 reports.

 

I am also interested, not least because of the time pressures that the Courts will be under, whether a rushed finding of fact hearing which won’t be able to take place because police records, or medical reports or X-rays that were directed didn’t arrive in good time, might develop this area of law that in those circumstances the police or NHS are “connected persons”

 

 

In the meantime, if you are a social worker and you’ve got a fabricated illness case, pick up the phone and have a word with your lawyer. And if you’ve got a section 37 report to write and the allegations are really difficult or unusual, you might want to do the same.

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Crunchy numbers

Posted on July 11, 2013 by suesspiciousminds

Bob Cratchit qualifies as a solicitor, and goes to work for Tim Tiny and Co. He specialises in care proceedings. He does nothing other than representing parents in care proceedings, that’s his speciality. He doesn’t do any advocacy, he just sees parents, goes through the papers with them, listens to their problems, gives them advice, and prepares any statements for them.

One idle day, Bob wonders about his long-term future in care proceedings. He didn’t come into care law to make lots of money, but he, like most people has bills to pay and wants to be able to have some fun after the bills are paid. He is also aware that his firm is a business and that at some level, the business will be interested in whether it is making money by employing him, or losing money. If what he brings in by way of income doesn’t pay his wages, they will let him go.

So, what Bob wants to know is – to cover his wages, how many care cases does he need to have going at any one time? He realises that off the top of his head, he has no idea. Is it four? Fourteen? Forty?  

Given that the case is a fixed fee, there must be a point at which for each case, he begins losing money for each additional hour he works on it. But where is that? After twenty hours? Sixty? A hundred?

[It may sound nasty and vulgar and ugly to look at things in this way, but given that Tim Tiny and Co is ultimately a business and not a charity, they would want to have some idea of whether the work Bob is doing ultimately covers his wages. If Tim Tiny and Co were in the business of selling doughnuts, they wouldn’t do very well unless they had an idea how many doughnuts they had to sell to break even, and how much they made per doughnut after covering their costs. And if firm after firm of Tim Tiny and Co’s end up having to let their Bobs go, who will be representing parents?

 

I’m not sure that any care lawyer has ever sat down to do these sums. You will see when you read this whole thing, that care lawyers aren’t sitting around on thrones made of gold, lighting Romeo y Julietta cigars with fifty pound notes. If they were any good with numbers, they’d be doing ancillary relief with Fiona Shackleton, charging £500 per hour – allegedly]

Five key numbers or assumptions, from which the rest of this is derived.

(1)   The fixed fee cost for representing a parent in care proceedings is £2907 (it is actually less than that in the Midlands and the North – £2256 and £2193 respectively) 

 

(2)   The duration of cases post the new PLO going live will be 26 weeks

 

(3)   In order for a solicitor as an individual real person to earn £100, they need to bill at least £300   (the rule of thumb being that of every pound billed, 33p is for the wages of the solicitor, 33p for the overheads and 34 p for the partners of the firm)

 

(4)   The minimum hourly wage in the UK is £6.19  

 

(5)   The notional hours per week worked by a person in England is 37, though a lot of people work more.   [For the odd situation of a fixed fee, working more hours is actually a BAD thing, since it makes the effective hourly rate go DOWN]

If you didn’t know, we moved a few years back from a system where a solicitor representing parents billed for their work for each hour they spent at about £65 per hour (up to a certain limit) and instead to a fixed fee system, where every case, regardless of how much time is spent on it, gets billed at the same amount.    [There’s a  complication to that where if you are able to show that you spent TWICE the number of hours on a particular case than the Government predicted the average case would take, you can try to claim an additional fee, but that is high risk and beyond the scope of this article]

Deep breath, maths time. Let’s start by chopping out the bit of the fixed fee which goes to overheads and partners. The bit that is in effect left for Bob is 1/3rd.  

That makes the bit of the fixed fee that covers Bob’s wages £969 per case.   [£2907 divided by 3. He won’t necessarily get all of this, what we are doing is working out whether the firm can afford to pay him £x, given that they use at most one third of his generated income to pay his wages]

[We can do this next bit really quite simply as a rough estimate – if Bob earns just under £1000 in wages per care case, he’s going to roughly need 10 care cases a year to earn £10,000, 25 to earn £25,000 and so on. ]

 

The minimum wage of £6.19 an hour, multiplied by 37 hours, multiplied for 52 weeks, works out at £11,910 per year. That’s 12 and a bit per year, if Bob works in London or the South of England, so it needs to be 13 cases [since you can’t take on ‘a bit’ of a case].

National average salary is £26,500, so Bob needs to run 28 care cases per year  – this goes up a LOT if he doesn’t work in London.

Where is Bob and what does Bob himself get per care case

Number of care cases to earn minimum wage

Number of care cases to earn national average salary

Weekly income for Bob per care case and

Notional hourly rate per care case (on 26 week cases)

Weekly income for Bob per care case and Notional hourly rate per case case (on 40 week cases)

“Break-even point?”

London/South (£969 per case)

13

28

£37.00

£1.00

£24.05

65p

70 or less

Midlands (£752 per case)

16

36

 

£28.86

78p

£18.87

51p

55 or less

North of England (£731 per case)

17

37

£28.12

76p

£18.28

49p

53 or less
           

Break-even point is based on Bob needing to generate income out of that fixed fee to cover his hourly pay (which on national average is £13.77 per hour). The more hours he spends on the case, the less profitable he will be, but if he goes OVER those hours in the column, the work he is doing will not actually be covering his wages.  [So, in the North of England, on a 26 week case, if a lawyer spends an average of more than 2 hours per week on each care case, they aren’t covering their wages]

The notional hourly rate, if you want to check it is   (amount for Bob per case / number of weeks the case will be running (26 or 40) / 37 hours per week).  Given that you don’t get paid per hour that you work on the case, the notional hourly rate is a way of looking at what, per hour, you effectively earn from HOLDING the case, given that the fixed fee can be averaged out over the hours the case is active in Bob’s caseload).

 

Bear in mind that the notional £1 per hour per case isn’t just earned  WHILST you are working on the case, but just whilst the case is going on, it is a way of smoothing out those days when you do 4 hours on the case and other days where you don’t need to touch it at all. 

 

 [Of course, the 10% cut proposed by the Ministry of Justice in their consultation means that Bob will be only be  earning 90p per hour for each care case he holds, AND the minimum wage is going up to £6.31, so from that point he will need to hold more care cases per year to get paid minimum wage. ]

So, to pay a specialist care lawyer (who doesn’t do advocacy)  the national average salary, they need to be opening 28 care cases per year. If they can’t open 28 care cases each and every year, then either they need to change their working model to start doing advocacy (which is billed separately to the fixed fee) or Bob will be ending up out of a job. That means, given how long proceedings last, in the new regime, you’d be wanting to have 14 or more in your cabinet at any one time.

(If you are in private practice, and you have not just rolled your swivel chair back to your filing cabinet to count whether you currently have more than fourteen care proceeding files, you have nerves of steel…)

 

That’s all a bit depressing. So here’s a positive way of looking at it, says Suesspiciousminds weakly, the 26 week PLO timetable will be making you nearly 50% more profitable per case per hour, and will be making the partners 50% more profitable per case per hour too.  You can say to your partner, “look, once the PLO comes in, every care case I have will be earning me 50% more per hour”      [£1.00 v 65 p in the South, 78p v 51p in the Midlands, 76p v 49p in the North].  How often do you get the chance to improve your hourly earning figures by 50%?

“Hey boss, I’m going to be 50% more profitable per hour on care cases after August, how about a raise?”

 (If you ARE planning to use that as an argument for a 50% pay-rise, I suggest that you don’t use the earlier part of this article or let the managing partner see it. Also, if you ARE working for the MOJ, don’t use this as a basis for cutting the fixed fees down by 35% of their current level)

If you are a specialist care lawyer, either start grabbing some private family work, or start doing advocacy, as otherwise you’ll be struggling to stay afloat, is my advice.

Quick ballpark figure, if Bob did all the advocacy as well, on a new PLO case being dealt with in the Magistrates Court, say 3 ½ day hearings, 2 advocates meetings  and a 3 day final hearing, that would mean  £2425 for the firm of which one third, or  £808.50  goes into the potential pot for Bob’s wages. Which is quite a chunk compared to what Bob would get for running the case or what the firm itself would get, and one can see why family solicitors are doing more and more of their own advocacy, since it nearly doubles the income per case for the firm.

 

Working all of this out for barristers is harder, since there isn’t the 1/3 Bob, 1/3rd overheads, 1/3rd Tim Tiny and Co rule of thumb, but the figures are all there to be calculated. It would be ludicrous to imagine that a barrister could run five day hearings in the County Court every working week of the year, so that’s the ludicrous notional highest GROSS earnings per year for solely publicly funded work £557 per day x 5 days=  £2800 in a week x 48 working weeks of the year.

 

 

If Bob specialises in representing children, the table is a bit different, since the figures depend on whether it is one child or more than one – don’t represent a baby in the North of England, unless you are doing quite a bit of the advocacy yourself…

Bob works in which area, representing how many children?

How much for Bob per care case?

Number of cases to earn minimum wage

Number of cases to earn national average

On 26 weeks, the weekly income per case, and the notional hourly rate

On 40 weeks, the weekly income per case and the notional hourly rate

Break even point

South (1 child) £745.67

16

36

£28.68

78p

£18.64

50p

54 hours or less

South (more than 1 child)

£1118.33

11

 

24

£43.01

£1.16

£27.96

76p

81 hours or less

Midlands (1 child)

£649.67

19

 

41

£24.99

67p

£16.24

44p

47 hours or less

Midlands (more than one child)

£974

13

28

£37.46

£1.01

£24.35

66p

71 hours or less

North (1 child)

£532.67

23

50

£20.49

55p

£13.32

36p

39 hours or less

North (more than one child)

£798.67

15

34

£30.72

83p

£19.97

54p

58 hours or less
           

And one final bit of cheery news. If you are representing a parent, you can console yourself when in the first two weeks of care proceedings you have to:-

See the client

Read the papers

Decide what, if any additional disclosure you need

Brief counsel for the contested ICO hearing

Decide whether you want an expert

Identify expert, ask them to complete the practice direction material

Make an application for the expert

Draft a letter of instruction for the expert

See the client again and prepare a statement

Get them to sign the statement

Brief counsel for the Case Management Hearing

That you will have, in doing so, earned £200 towards your cost target.

Comments Off on Crunchy numbers

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“World’s smallest violin”

Posted on July 8, 2013 by suesspiciousminds

Am going to pose a question today, and then answer it later on in the week.

Once we move to care proceedings concluding in 26 weeks, with the new PLO, how many care cases would a lawyer doing NOTHING but care cases for parents, and not doing the advocacy on the cases themself, have to hold in a year, in order to make minimum wage?

What about if they wanted to earn the national average wage?

Is there a viable economic future for care lawyers who don’t do their own advocacy? How full does their filing cabinet have to be to make that work?

“these ladies aren’t starving to death. They make minimum wage. You know, I used to work minimum wage and when I did I wasn’t lucky enough to have a job the society deemed tipworthy.”   – Mr Pink

 

 

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