Author Archives: suesspiciousminds

“How safe are our children?”

Posted on April 19, 2013 by suesspiciousminds

The NSPCC report on child abuse and neglect.

The report can be found here

http://www.nspcc.org.uk/Inform/research/findings/howsafe/how-safe-2013-report_wdf95435.pdf

and is interesting and well worth a read. It is quite stat heavy, but there are decent graphs which make the points well, and they set out how the stats were arrived at. (One of their core ones, I have an issue with, but will deal with that a bit later on)

The latter bits of the report set out the risk indicators for children, nearly all of which are not likely to come to a shock to anyone working within the family justice system.

You are more likely, as a child, to be physically abused or neglected if these factors are present in your family :-

Domestic violence, substance misuse, parents with mental health problems, parents with learning difficulties, children with physical or mental impairments, children from certain ethnic or minority backgrounds, parents who suffered abuse themselves as a child, and poverty.

The poverty one is interesting, because it is the elephant in the room at the moment. Is part of our child protection system, as might be argued by John Hemming and perhaps Dr Dale, a punitive way of dealing with the poorest members of our society (and perhaps even a redistribution of children from those who have them, to those with greater means and income who would adopt them?)

Also of course, from everything we know about the political climate of the country at present, poverty is only going to get worse over the next few years (unless you were on the Board of HBOS or are a stockholder in Vodafone, Starbucks, Google et al)

Here’s what the report says about poverty as a risk factor [underlining is mine, as I think this is a VITAL point]

Children living with poverty, debt and financial pressures

Why is this a risk factor?

Although there is no evidence to show that poverty causes child maltreatment, poverty and child maltreatment share many similar risk factors. Numerous explanations try to explain the relationship between poverty and child abuse and neglect. The impact of the stress associated with poverty and social deprivation on parenting is the most common explanation.

Researchers have found that parents with a low income are four times more likely to feel chronically stressed than parents with higher incomes. Stress levels of parents living in poorer neighbourhoods have been shown to be high. One study identified a “strong relationship between parents’ levels of stress and greater use of physical discipline”. Another associated being in a lower socio-economic group with a more significant level of physical discipline and abuse.

An analysis of women’s childhood experiences of abuse and neglect found evidence that women from poorer childhood homes were twice as likely to have suffered from abuse or neglect and three times as likely to have suffered from more than one form of abuse than those from more well-off childhood homes. Emerging findings from research in England highlight the impact of poor and inadequate housing on families and poor housing is a common characteristic of families in poverty. The unsafe environment and the impact of parental stress have been found to be factors in some SCRs and where children are subject to child protection plans.

This does not mean that parents who are poor will abuse or neglect their children. The relationship has been described as “circular and interdependent as opposed to linear and causal”.

What we know about prevalence

The Institute for Fiscal Studies estimates that the number of children living in relative poverty in the UK85 was around 2.5 million in 2012, rising to about 2.9 million in 2015.86

Being poor doesn’t mean that you will neglect your children, but being poor of course means that you are much more likely to have to make difficult choices about budgeting and poor choices have a much more detrimental effect. (If you are choosing between whether to spend £80 or £110 one week on food shopping for the next week, choosing the latter one week doesn’t massively affect your family, but if you are choosing between whether to spend £15 or £25 on shopping that week, and perhaps to spend the extra £10 means not having the heating on, those choices do make a proportionately greater difference to the wellbeing of the family.

There is an interesting tack in the main body of the report. The NSPCC calculate that for every child known to the authorities to be suffering from abuse or neglect, there are another 8 who are not known. [This is the statistic I am most cautious about, since it is drawn from an extrapolation of their 2011 study that showed children self-reported abuse or neglect (6% of over 11s, and 2.5% of under 11s) and applied that to the population at large. For me, I would need the 2011 study to be much larger and more robust before you could start extrapolating it to the population at large – for example, if you are asking a 14 year old whether they have been seriously mistreated by their parents in the last year, that 14 year old’s idea of serious mistreatment might be very different to society’s idea of it. There might well be days when almost any 14 year old would say that his parents were mistreating him]

But, setting aside my quibble about the number of children who are the bottom part of that iceberg, under the surface and unknown to professionals, the NSPCC say this

The gap is unlikely to close

Could services ever reach all maltreated children? Even if this were desirable (and few would consider this level of state intrusion into family life appropriate) it is very unlikely in the current context. If children’s social services were to become aware of just one quarter of those children who were maltreated (but not currently known to them), we estimate the number of children subject to child protection plans or on registers in the UK would triple. The resources required for this would be significant: an estimated additional £360 million to £490 million in public spending. In today’s fiscal climate this kind of investment is unlikely; to close the gap altogether is highly improbable. Nor is this the most effective approach. While it is vital to support children and adults in speaking up about abuse, in order to stop abuse in its tracks, this will never be enough to prevent children from being harmed in the first place.

This seems to be a bold, if pragmatic, thing to say about child abuse. Particularly for an organisation has been campaigning for the last few years on the basis of ending child abuse. Cruelty to children must end, FULL STOP (remember?)

They are now accepting that society simply can’t end it or stop it. There will always be child abuse and neglect. And as they point out, even if you raised detection levels to a much higher point, that would have a huge and detrimental impact on freedom and privacy and family life, and the resourcing of the services would be utterly unmanageable for our society to fund.

So, are the NSPCC throwing in the towel? Unsurprisingly, not. What they instead posit is moving towards the very early period of child abuse and neglect and nipping that in the bud before it escalates into more serious problems.

We need a different approach to child protection

Which is why a different approach to child protection is needed, one that does more to prevent abuse “upstream” rather than intervening to stop it once it has already happened. Most public spending goes towards picking up the pieces rather than into “upstream” prevention. The National Audit Office estimates that only 6 per cent of public expenditure is focused on stopping problems from emerging in the first place.

While intervening to address abuse once it is known will always be a moral and legal imperative, child abuse and neglect will never be substantially reduced unless we become smarter at preventing it from happening at all.

Understanding the circumstances in which children are at increased risk is essential for prevention. Research points to the personal characteristics, family circumstances and environments that place children at greater risk of abuse and neglect. In Part 3, we set out the available evidence on this, highlighting nine key risk factors. There is no direct causality between these factors and abuse; they are not predictive of maltreatment. But by recognising that children living in such circumstances are at heightened risk, greater support could be directed towards families to reduce the chances of abuse and neglect from occurring at all. While this support comes at a price, it is ultimately more cost-effective to prevent abuse from occurring than to meet the many costs that fall across society because of the damage caused to children who were abused or neglected in their childhood.

Wider society also has an important role to play. Abusive behaviour cannot be stamped out by the state alone; individuals, families and communities must also be responsible for the change. Most adults think parents, families, friends and neighbours have a responsibility to prevent child abuse – and that greater responsibility lies with these groups than with government.

So while government can do much to influence the conditions in which children live and while professionals play an important role in intervening to protect children and helping those who are at risk of abuse, wider society has a responsibility too. However, all too often people frame this responsibility in terms of being willing to act if worried about a child, rather than being willing to address faults in their own or others’ behaviour. Perhaps it is time to reassert our responsibilities to children as citizens.

I can’t say I’m sure how the NSPCC vision here gets translated into action, but I think it is a legitimate and interesting debate to have as a society. I thought the report as a whole (although I don’t agree with every aspect) was a challenging and thought-provoking document.

There are some very mind-boggling figures in it

There were a total of 21,493 sexual offences against children recorded by police in the UK in 2011/12.*

There were 4,991 rapes of children recorded by police in England and Wales in 2011/12.

There were 7,812 cruelty and neglect offences recorded by police in the UK in 2011/12.

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Posted in assessment of risk, research and tagged abuse, child abuse, child neglect, how safe are our children, neglect, NSPCC. Bookmark the permalink.

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

Posted on April 18, 2013 by suesspiciousminds

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

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

26 weeks

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

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

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

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Posted in family justice modernisation, timescales and tagged 26 weeks, Children and Families Bill, family justice review. Bookmark the permalink.

“The driver cannot ignore the passengers”

Posted on April 15, 2013 by suesspiciousminds

The judicial review case of H R v Kingston Upon Hull 2013 – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

The case is here

http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

This is, I think, the pivotal passage from the judgment (hence the title) – underlining mine

When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30^th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31^st January that they would seek to move the children into foster care.

They met with the parents on 1^st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

The LA then moved the children, earlier than they had intended to.

The parents made an application for judicial review, seeking to overturn two decisions :-

That the decision on 31^st January that the children would be moved was unreasonable, it having taken place without consultation
That the decision on 1^st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2 – the Court determining that the events of 1^st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

The LA had claimed that they had not MADE a decision on 31^st January to move the children, but the Court rejected that.

I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31^st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1^st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1^st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS. Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary. Underlining again mine, for emphasis.

An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.

When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.

In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced. [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this? It seems to me that it probably is.

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.

The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.

It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.

During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders. I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

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Posted in case law, consultation, judicial review, Uncategorized and tagged duty to consult with parents, H, interim care order, interim care order and judicial review, judicial review, judicial review and interim care order, Kingston judicial review, moving a child from family members, R v Kingston upon Hull 2013. Bookmark the permalink.

Terminating parental responsibility

Posted on April 15, 2013 by suesspiciousminds

The High Court decision of DW (A Minor) & Another v SG 2013 and the possible revival of applications to terminate a father’s parental responsibility (PR). Has the bar been set high enough?

http://www.bailii.org/ew/cases/EWHC/Fam/2013/854.html

A long time ago, 1995, an application to terminate a father’s parental responsibility was heard in the High Court, and that had been the only authority on the point since that time. Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048

The grounds were that during the course of care proceedings, it had emerged that the father had caused the serious injuries to the child, and the mother no longer wanted him to have parental responsibility, made an application and the Court granted it.

[Now, of course, that course of events, though tragic, is not exceptional in care proceedings – and one might well argue that finding out that a father had not behaved well, had even been abusive, ought not to result in him being stripped of his parental responsibility – at least not unless the child was being adopted, and I know many of my readers think not even then.

This is particularly so, since the Children Act 1989 provides a statutory mechanism for the mother to apply to remove the father’s PR, but NOT the reverse. The mother’s PR is sacrosanct, and is only removed by the making of an adoption order. It seemed terribly wrong that the father’s PR could be removed by an application, pace Re P, with just some evidence that the father was an abuser]

Most practitioners considered that to be a quirk, an anomaly, and a decision that wouldn’t actually stand up to scrutiny of the Human Rights Act if it were looked at again today.

Most practitioners (myself included) would have been wrong.

The father in DW was not, one would have to say, a very nice person. He was a man who had been on trial for ten counts of sexual abuse and who only pleaded guilty the day before his children were due to give evidence. He received a four year custodial sentence. The father, throughout the private law proceedings maintained that he was innocent of all charges and had only pleaded guilty to protect the children (although finally advanced a position that he accepted that the convictions were made and he could not go behind them)

So, not a man who would be on the shortlist for any father of the year award, and in writing this piece, I am clearly not defending anything that he has done, or saying that he should play any part whatsoever in the children’s lives. I am merely doubtful that removing his parental responsibility (no matter how diminished his exercise of it would rightfully be in practice) is fair. If you asked me should he have done twenty years in prison rather than four, I’d be right there with you signing a petition to that effect.

The Judge looked obviously at the statutory provisions (underlining mine) :-

Section 4 (1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if

(a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A);

(b) he and the child’s mother make an agreement (a ‘parental responsibility agreement’) providing for him to have parental responsibility for the child or

(c) the court, on his application, orders that he shall have parental responsibility for the child.

(1A) the enactments referred to in subsection (1)(a) are

(a) paragraphs (a) (b) and (c) of section 10 (1) and of section 10A (1) of the Births and Deaths Registration Act 1953 ….

…

(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders.

(3) The court may make an order under subsection (2A) on the application

(a) of any person who has parental responsibility for the child… “

Raising the interesting question that a mother can apply for a father’s PR to be withdrawn, and oddly the father can apply for the father’s PR to be withdrawn, but neither can apply for the mother’s PR to be withdrawn.

The Court also looked at the existing authority of Re P

16. “I have to say, notwithstanding the desirability of fostering good relations between parents and children in the interests of children, I find it difficult to imagine why a court should make a parental responsibility order if none already existed in this case. I think the continuation of a parental responsibility agreement in favour of the father in this case has considerable potential ramifications for future adversity to this child. I believe it would be a message to others that he has not forfeited responsibility, which to my mind it would be reasonable to regard him as having done. I believe that it might be deeply undermining to the mother and her confidence in the stability of the world surrounding (the child).”

17. Later, he added (on page 1054):

“I believe that there is no element of the band of responsibilities that make up parental responsibility which this father could in present or in foreseeable circumstances exercise in a way which would be beneficial for the child. I therefore conclude that it is appropriate to make an order as sought under section 4…bringing to an end the parental responsibility agreement entered into….”

For my part, I think there is a conflation there of two issues. If the father in this case DID not have PR, and one were considering his application for PR, I can see compelling reasons not to give it to him. But what the Court is doing is removing PR from a person who already has it (knowing that the only other mechanism for this is adoption, the most draconian order a family court can make) .

I think that removing PR from a person who has it is a big deal, and requires something much more compelling – if indeed section 4 as drafted is compatible with human rights (given that it is framed entirely on gender terms, I just don’t think it is). And moreover, that although the fathers in these two cases appear to be pretty unsympathetic characters, the way the decisions are framed mean that fathers who have done less bad things could lose their PR.

I shall be fair – the alternative way of framing this argument is :-

Parliament put in place a mechanism that allowed a mother to apply to terminate the PR of a father , and a mechanism that allowed the Court to terminate that
If you are going to have that power, there must be circumstances in which it can be used
The father’s conduct in both of these cases was reprehensible, and if you aren’t going to allow the application in these cases, what sort of case are you going to allow it?
If it is only a theoretical power, what is the point of it? And as far as we can see, it is a power that has only been used on 3 occasions in nearly twenty five years, so it is hardly a landslide.

[The problem with playing devil’s advocate, is that the devil is persuasive. I shan’t do that again in a hurry]

The Court in DW clearly considered the case very carefully (and I shall come onto some of the evidence in a moment) and also took into account the human rights issues, rejecting the father’s claims that section 4 of the Act was discriminatory if it penalised ‘bad conduct’ for fathers but not mothers.

I am troubled by this, since I think that the facts in these two cases, and the decisions as reported, do open the door to a lot of fathers having applications for their PR to be terminated.

I don’t think that the bar here was set very high, bearing in mind the importance of the issue at stake. And not least because if the roles were reversed, a mother would be at no risk of losing her PR.

Looking at the bar, considering what’s at stake, it seems to be more fit for limbo dancing than pole vaulting.

[I did look at illustrating this, and my quick trawl of google images located a David Hasselhoff Limbo-Dancing album. And he has his shirt off on the front cover… I have resisted this, as likely to place me in excess of the EU Regulations on Cheese-Content for Blogs]

It is however, a judgment that was careful to take into account various factors and placed the welfare of the child at the heart of the case (and once the Court rejected the argument that section 4 was incompatible with article 8, was the only rational conclusion)

In my judgement, the magnetic factors in this case are D’s emotional needs, the harm he has suffered, and the risk of future harm. As a result of the turbulence and disruption endured by this family during the mother’s relationship with the father, and the period leading up to the father’s criminal trial, all members of the family, including A, C, the mother and D have suffered harm of varying sorts and to a varying degree. So far as D is concerned, whether or not he witnessed the father perpetrating any abusive acts on A, I accept that he has suffered emotional harm as a result of the harm inflicted by the father on other members of his family. I accept that, because of his parentage, D’s position in the family is difficult and that there is a risk of his suffering further harm and stigma if he continues to be perceived and treated in any way as the son of this man who perpetrated acts of sexual abuse on his older siblings.

In addition, I take into account D’s expressed wish to have no involvement with his father. As he is only aged eight and a half, the weight to be attached to those wishes is limited. I accept that to a considerable extent his express wishes have been influenced by his mother and siblings. Nevertheless, I find that they are rooted in the reality of his life.

I also take into account the capacity of the mother to meet D’s needs. I find that were the father to retain parental responsibility, she would be placed under very great strain, given the probability as I find that the father would subsequently apply for contact, and that he would seek to be further involved in D’s life. Equally, given all the harm that the father has inflicted on the family, I accept that the mother would find it well-nigh impossible to send a regular report to him concerning D’s progress. I find that imposing such an obligation on her would impinge on D’s emotional security.

All these factors point towards an order terminating the father’s parental responsibility and dismissing his application for a specific issues order. On the other side of the scales, I take into account the fact that, as part of his background, D is the biological child of the father, and that as an aspect of his emotional needs he, like every child, should grow up with some understanding of his origins and, whenever possible, a relationship with each biological parent. But in certain circumstances those needs must give way to more important considerations, in particular, the need for emotional security. I conclude that D’s emotional security would be imperilled were the father to continue to have any further involvement in his life. Equally, whilst acknowledging that as an aspect on their respective Article 8 rights, both D and his father have a family life together, that aspect is in this case outweighed by D’s overriding need, as part of his Article 8 rights, to security within his family.

Miss Townshend sought to persuade me that Re Pwas distinguishable on the facts of this case. On the contrary, and notwithstanding the factual differences between the two cases, I find that it provides invaluable guidance. Following Singer J’s example, I look to see to what extent the well established factors for making parental responsibility orders would be satisfied in this case. I accept that, although the father showed a degree of commitment to D when living in the household, that was wholly undermined by his actions in perpetrating serious sexual abuse on A and C, and this has been compounded by his subsequent denials up to the third day of the trial and renewed assertions that he is not guilty. So far as attachment is concerned, whilst there was undoubtedly some degree of attachment between D and his father when he was a baby, there is no attachment now as he has not had any contact for several years. As indicated above, I find there is force in the mother’s concerns that the father is motivated by wishing to become more involved in D’s life, to the detriment of the family including D. As in Re P, I find that, if the father did not have parental responsibility, it is inconceivable it would now be granted to him, and that this is a factor I should take into account when considering this application to terminate his parental responsibility. Furthermore, like Singer J in Re P, I find that in this case there is no element of the bundle of responsibilities that make parental responsibility which this father could in present or foreseeable circumstances exercise in a way which would be beneficial for D.

The evidence in this case was interesting, since father instructed a clinical psychologist, Mr Shuttleworth, to conduct an assessment.

I am going to simply quote extracts from the judgment and let them speak for themselves – I do not know Mr Shuttleworth (and I suspect from reading this judgment, I am unlikely to get to know him). It may be that this judgment does him a grave disservice.

In his report, Mr Shuttleworth was critical of Dr Obuaya’s psychiatric assessment carried out in the course of the criminal proceedings, in particular, his failure to identify what Mr Shuttleworth regarded as the clear symptoms of ADHD. Mr Shuttleworth went so far as to question whether Dr Obuaya had been right in concluding that the father had been fit to plead.

On the issue of sexual risk, as stated above, the father maintained throughout the assessment that he was innocent of the offences to which he had pleaded guilty. Mr Shuttleworth noted that in prison he had been assessed as ‘presenting a low risk of recidivism’. In his assessment, Mr Shuttleworth stated that ‘there is no evidence that he has any sexual deviations’ and concluded (contrary to the observations of the sentencing judge) that there had been no escalation of his sexual offending. Mr Shuttleworth recorded that the father denied having been sexually abused by any member of his family, contrary to statements that appeared in the father’s medical records.

Mr Shuttleworth concluded:

“I do not believe that he would be a risk to a child from a sexual point of view. There may be more doubts if he was looking after a girl because of the convictions, however there is no indication that he ever had any particular interest in a male….While I do not believe there is any evidence that he is a risk, his recent behaviour, particularly in prison, indicates that he is fully willing to enter into any programme which might involve him proving his parental skills. He will obviously stop short of agreeing to claim responsibility for any alleged sexual crime in order to enter into any of those programmes.”

He added:

“My overall impression is that he has been amazingly tolerant and accepting of his ex-partner’s fears in not demanding more contact, although I would presume that he would like to have this sometime in the future when his reputation has hopefully been rehabilitated.”

In oral evidence, Mr Shuttleworth drew attention to the father’s claim that his criminal lawyers had advised him to plead guilty to avoid a longer sentence. Mr Shuttleworth was not convinced that the father was a sexual offender and expressed the view that there were grounds to challenge the reliability of the conviction based on his doubts about the father’s fitness to plead, the failure to diagnose ADHD, and ‘the way the trial was conducted’. Cross-examined on behalf of the mother, Mr Shuttleworth stated that, if the father had been abused by his brother, as stated in the father’s own medical records, and if he had been involved in sexual activity with A and C, he would pose a risk to D that Mr Shuttleworth described as ‘moderate’, but he added ‘other people in prison who have more experience of these things assessed this risk as low’. When invited to consider specifically the risk to D, Mr Shuttleworth said:

“Even if he’s had sex with children, I’ve come across a lot of paedophiles who do not abuse their own children.”

Mr Shuttleworth added that ‘there’s an assumption that people who are paedophiles are unable to control their impulses’. He said that he found the father to be a very warm and caring man who cares very much for his children.

And the Judge’s conclusions in relation to this evidence

50. In light of my findings about those matters I turn to consider the evidence of Mr Shuttleworth. I listened to that evidence with increasing concern. I regret to say that I have found his opinions naïve, complacent, unreliable and at times misleading. His reluctance to accept the convictions as the factual basis for his assessment was a dereliction of his duty as an expert witness. His statement in his report that there was no evidence of any “deviations” was simply untenable given the existence of the convictions for ten offences of sexual abuse. His various statements about paedophiles quoted above runs contrary to all the understanding about the dangerous and deceitful behaviour of paedophiles which this court has come across many times over the years. His assessment of risk was, in my view, worthless, and I reject it.

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Posted in case law, private law and tagged DW (A child) 2013, parental responsibility, Re P ( Terminating Parental Responsibility) 1995, removing a dad's PR, removing a father's parental responsibility, removing a father's PR, section 4 children act, termination of parental responsibility. Bookmark the permalink.

Scissorhands versus Scissorhands

Posted on April 12, 2013 by suesspiciousminds

An imaginary judgment [it has been a while, and I always like doing these]. This is like a Kramer versus Kramer for whimsical emo kids…

The Court is dealing today with an application by a father, Mr Edward Scissorhands, for contact with his son, Vincent. Vincent is just 3 months old, and lives with his mother, Kim Scissorhands. The parents have been estranged since the latter stages of the mother’s pregnancy with Vincent, and live apart.

The unusual feature of this case is a stark one. Mr Scissorhands suffers from a unique physical disability, in that he does not possess hands with opposable thumbs and fingers, but rather a series of blades, five on each hand, the longest of which is approximately eighteen inches long. Mr Scissorhands has learned, throughout his life, to use these ‘blade fingers’ with precision and accuracy, and the Court has been shown photographs of ice sculptures made by the father, which show both a high degree of artistic skill and control over these fingers.

It is common ground in this case that Mr Scissorhands is a warm and kind man, who loves and adores his child and that he would be a positive influence and a good role model – his forebearance, inner strength, his kind heart and the way he has overcome what for many people would appear insurmountable obstacles, all do him enormous credit and would be a fine example for his son.

Nor is there any ill-will or animosity between the parents, save for their disagreement as to whether contact can safely take place.

The issue is whether, despite Mr Scissorhands knowledge of childcare and desire to put that knowledge into practice, he would be physically capable of doing so safely.

It is factually correct, and Mr Scissorhands accepts this, that he could not hold his son, nor safely touch him, and that as a result, things that many parents take for granted, such as cuddling, tickling, hugging, changing a nappy, holding the child’s hand when crossing a road, are not possible for him.

He was asked, by counsel representing the mother, for example, to demonstrate whilst in the witness box, how he would play a game of “peekaboo” and this resulted in several minor, but nonetheless real, cuts to his forehead, which would of course be not desirable for either the father or the child in what is ordinarily a happy and joyful interaction.

The father’s face, I should add, does bear healing scars in a multitude of places, caused by inadvertent brushes of the scissor blades on his own face.

One cannot easily ignore, despite understanding that the father would exercise all possible caution and care and would have no intention to cause any harm to Vincent, that if such accidental cuts have happened to the father, causing facial scarring, that it is a risk that cannot sensibly be ignored that a cut might happen, completely accidentally, to Vincent.

I am invited by the mother to find that the father, not as a result of any culpability on his part but as a result of his unique personal characteristics, would pose a risk to Vincent in unsupervised contact, both in terms of an inability meet his needs (he would be unable to hold or comfort Vincent if he were distressed and would be unable to change him, feeding him would potentially be manageable though difficult) and the risk of an accidental injury occurring.

I have to confess that I found this aspect difficult. To make a finding of risk against a father where there is no culpability on his part, appeared at first blush to be harsh, and I had to take care in approaching this.

However, I have to turn my mind to the test that the House of Lords set for assessing the risk of harm (although this applies to public law proceedings, it is still pertinent in this private law case, considering as it does how the Court is to tackle the issue of future risk)

Lord Nicholls in Re H [1996] AC 563 at 585F set out a likelihood of harm as: “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

It is not necessary, in determining whether there is a risk of harm to the child (as I must, this being not only a live issue for the Court to determine, but one of the relevant factors in the Welfare Checklist which I must have regard to), that is the basis on which I should approach it – on the balance of probabilities, with the burden of proof being on the person who asserts risk (in this case mother) is there evidence of a risk that cannot sensibly be ignored.

I have to answer that question in the affirmative. There is a risk that unsupervised contact would cause harm to Vincent, notwithstanding that father has no wish or desire to cause such harm and that he has nothing but love and warmth for Vincent. When considering the harm element of the welfare checklist, I am not obliged to consider any mens rea or intent on the part of the parent.

My conclusion is that Vincent would be at risk of harm in unsupervised contact and that the risk of harm could not be safely managed, despite any assurances that father could give. The harm would be in effect, outside of his ability to control, no matter how careful he would be, a momentary slip would cut this fragile baby. A baby of 3 months needs to be changed, and comforted, needs to be cleaned, needs to be fed and held. The father, despite his clear desire to do so, is simply not in a position to do that safely.

I am therefore driven to conclude that unsupervised contact for this father is not possible.

I turn then to supervised contact. The mother is not willing to supervise the contact (and of course, directing an estranged parent to supervise the contact of their ex partner would be wholly unusual and indeed undesirable). Nor are any members of her family willing to do so.

The father has no family members who could undertake this task.

Neither parent is in a financial position to fund the supervision of contact themselves.

I have obviously then had to grapple with the fundamental principle that contact with both parents is vital for a child and that contact should not be ceased unless there are compelling reasons for this, only in exceptional circumstances, where there was no alternative. There is a raft of case law to that effect, the most recent being

IN THE MATTER OF C (A CHILD) sub nom AL v (1) JH (2) C (A CHILD BY HER GUARDIAN) (2011) [2011] 2 FLR 912

And therefore, a deal of thought has been given to whether some legal underpinning which ensures that there will be a supervisor for father’s contact, to allow him to have supervised contact until such time as Vincent is old enough to (a) not require such ‘hands on’ care and (b) to be in a position to recognise the need to be careful around his father and have the ability to keep himself safe.

Having established that no family members can supervise the contact, that leaves only professionals. A supported contact centre would not offer the degree of supervision that is required here – it must be more than merely ‘pop in’ or observed contact, there is a risk management function here.

Whilst the Court could potentially make a direction for the Local Authority to prepare a report under section 7 of the Children Act 1989, and recommend to them that they prepare some observations of supervised contact, that would be only a short term solution, at best securing two or three supervised sessions of contact.

Can they be obliged to supervise the father’s contact on an ongoing basis, as that is what is needed here?

The answer, sadly, is that they are not.

I cannot compel them under section 11 (7) (d) of the Children Act 1989, since I am not able to place conditions on contact that apply to third parties (as a result of s 11 (7) (b)

I have been pointed to Family Assistance Orders pursuant to section 16 of the Children Act 1989, where the Court can order a Local Authority to ‘advise assist and befriend’ a family. Does that go so far as to require the supervision of contact?

The case of S V P (CONTACT APPLICATION: FAMILY ASSISTANCE ORDER (1997) 1997] 2 FLR 277 suggests that a Court going over and above the requirement to advise, assist and befriend component of a Family Assistance Order goes too far. Whilst I could invite the Local Authority to supervise contact under such an order, I cannot compel them to do so. I can direct s16 (4A ) for the LA to give advice and assistance regarding establishing, improving and maintaining contact, and direct for them to prepare a report s16 (6)

Additionally, the FAO only lasts for 12 months, and what is required here is something much longer lasting.

There is a temptation to consider making the FAO, directing that the father have supervised contact, and that the LA report in 12 months; and that is something I will store on the back burner for the moment.

I have also considered whether I could reasonably make an Interim Care Order (under which the Local Authority would have a duty to promote the father’s contact, and thus would have to provide supervision of it), but I cannot make such an order of the Court’s own motion, save for alongside a section 37 investigation. I could make more than one such order, if the section 37 report was in my judgment insufficient.

RE K (Children) 2012 [2013 1 FCR 87] being authority for that point.

But in my view, the most that could be achieved by doing so, would be to obtain a series of supervised contact sessions, and information about whether father could have meaningful contact in such a setting. It does nothing to secure the provision of ongoing supervision of contact; which would only happen if either the Local Authority wished to do so voluntarily, OR they voluntarily applied for a Care Order and one was made in due course.

I have made enquiries of the Local Authority, and not surprisingly, they take the view that Vincent is being well cared for by his mother and that a Care Order is not required to protect him. They do not volunteer to either supervise his contact, other than as a ‘one off’ nor to issue proceedings.

To make an Interim Care Order purely to facilitate contact appears to me, in the hackneyed phrase to be a sledgehammer to crack a nut.

[Author’s note, I think I can recall a case several years ago where this was done and supported by the higher Courts but I can’t now find it – if anyone recalls it, please nudge me. It might be Re M (Intractable Contact Dispute :Interim Care Order 2003, [2003] 2 FLR 636 where the Court sanctioned a removal under an ICO and a section 37 to try to resolve an intractable contact dispute. I think it probably is. ]

I thus, it appears to me, cannot order the Local Authority to provide the supervision of contact, and the best statutory provision is to make an order for weekly supervised contact, make the Family Assistance Order for 12 months and direct the LA to report on their work in 12 months time, adjourning any final decisions until that point.

It must be open to question whether the Court could utilise the same rationale as in Re K (Children) 2012, to make repeated Family Assistance Orders where the report does not cover what is desired (i.e reports on the quality of that supervised contact and some ongoing commitment to supervise in the future) – the Court of Appeal in Re K took the view that as there was nothing in statute to PREVENT repeated s37s, it was lawful to do so, and that therefore could be argued in this case, were I to do so. Thus, a succession of Family Assistance Orders could potentially be made, leading to many years of litigation, albeit litigation only revisited annually.

Instead, however, I make an order that the mother should make Vincent available for contact with his father once per week for two hours.

I am entitled, under section 11 to make directions as to how that section 8 contact order will come into effect, and those of course include the handover venue.

Very well, I have determined, taking into account all the circumstances of the case, and the welfare checklist, with Vincent’s welfare being my paramount consideration, that the handover venue should be the reception area of the Local Social Services offices. The father is not to have unsupervised contact, and is not to leave that reception area with Vincent without the express approval of the Local Authority. Those are matters that I direct, pursuant to section 11 of the Children Act 1989

I will ensure that a transcript of this judgment, which indicates that Vincent would be at a risk of serious harm if the father’s contact were not supervised, and that any professional who knowingly allowed Vincent to come to that risk would, in my judgment be negligent.

I trust to the goodwill and sensible nature of the Local Authority staff that they would not allow Vincent to be subjected to a risk of significant harm that a Judge has carefully determined cannot sensibly be ignored. I am sure that they will step in and make sure that Vincent is watched and observed and kept safe during the two hour period when he will be in their reception area (or such other venue as they choose to transport him and the father to)

The parents, may of course, vary the handover location by agreement.

I am certain that any reasonable Local Authority, mindful of their duties towards a child in need (and I find that Vincent is such a child) in their immediate proximity would conduct their section 17 assessment of his needs REASONABLY and conclude that he needs to have the relationship with his father that the Court have determined is vital for him, and that in order for him to be safe, there is a need for services, in the form of supervision.

If I am wrong in my certainty, then another Court will look at this case, either by way of judicial review, or a civil claim for negligence.

Thank you all for your time.

[As ever with my imaginary judgments, all I did was have the kernel of an idea – what would happen in Court if Edward Scissorhands have a baby? And then run with that, with no idea of how my imaginary Judge would get herself out of this predicament that I had cheerfully dug for her. I didn’t get on to the disability discrimination aspects, though it does seem to me that it is solely the result of father being physically disabled and not having hands, that has resulted in him not having unsupervised contact.

The joy of this draconian decision (which occurred to my imaginary Judge, who I think is called Judge Knott-Lestyebe is that not being a party to the proceedings, though the LA would want to appeal it, they may struggle to do so.

Although even this footnote now gets its own footnote – a person who can show that they are a person interested, aggrieved or prejudicially affected by the judgment may appeal with leave Re M (Prohibited Steps : Application for Leave} 1993 1 FLR 275.

Of course, this is all mere fiction and fancy and any lawyer will recognise the most ridiculously far-fetched element of the whole piece – there is no way that post LASPO either party would have had counsel ]

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Posted in case law, contact, imaginary judgment and tagged compelling a local authority to supervise contact, contact, edward scissorhands, family assistance order, imaginary judgment, supervision of contact. Bookmark the permalink.

“Not with a bang, but a whimper”

Posted on April 11, 2013 by suesspiciousminds

Possible fallout from R (JG) v the Legal Services Commission 2013

This is the much anticipated, and long-awaited, outcome of the judicial review against the LSC (now the Legal Aid Agency, LAA) and their refusal to pay the child’s solicitors the costs of an expert fee in private law proceedings where the Court had determined (a) that they needed expert evidence to determine the case (b) that the parents who were not in receipt of public funding could not pay for it, or even pay a third share of it, and thus (c ) that the entire costs of the expert assessment should fall upon the child’s public funding certificate.

That seemed to be the only way for the Court to obtain expert evidence when faced with parents representing themselves or who had no funds to pay for an expert; but many observers were becoming increasingly concerned that the Courts were appointing Guardians in private law cases not so much for what the Guardian could bring to the table, but so that the Court had access to the child’s public funding.

The LSC were always going to take a stand on this at some point, and refuse to pay all of the costs of an expert report when the parents were not contributing.

Here are some of the reasons, from a quick think, about why expert evidence might be needed in private law proceedings in order to reach a fair conclusion :-

The child presents as having psychiatric or psychological problems – maybe the child is self-harming, or has anorexia
The child has a medical condition, for example Asperger’s Syndrome, which may impact on change, or routines (and thus how contact and residence are to be managed), or the parent has a medical condition which affects their ability to care, or travel to contact
There are allegations of Parental Alienation Syndrome, or implacable hostility
There are historical concerns that require a risk assessment of future risk
There are allegations about substance misuse or alcohol misuse (testing, psychiatric evidence about prognosis)
There is a dispute about paternity that requires DNA evidence (unless the Court is going to start resolving paternity disputes without DNA testing)
There are concerns about the mental health of either parent which requires expert evidence as to diagnosis and prognosis

In our brave new world where neither parent is entitled to public funding, none of those assessments can be done unless someone is prepared to pay for them. And the LSC have made it plain that this someone is not going to be them, where they have been parachuted into the case as a portable chequebook (sorry, Rule 16.4 Guardian)

Sadly, the judgment in JG v LSC is not yet up, and I’m sure that the Court made attempts to put a ring fence around the most serious sorts of cases and put some exceptional circumstances in place (so I will return to the topic once the judgment is up)

But in broad terms, the child’s solicitor, and the Law Society lost, and the LSC won. Not a huge surprise. We all saw that coming. It doesn’t seem to me that the Courts fought the LSC on the beaches on either this one, or the prior authority case, the judgments in both may as well have been written on a white flag.

It seems, to this jaded hack, that Abu Qatada was able to get our Courts to do more for him, than the Law Society were able to get a Court to do for children. * I will cheerfully retract this, if when I see the judgment, it appears that a valiant but ultimately doomed attempt was made by the Court to preserve the interests of children as being paramount in the whole exercise.

*{too harsh? Probably, but I am a bit crosspatch about this. For example, in the recent planning case of Stevens v Secretary of State for Communities and Local Government 2013, the Court reminded themselves that where a persons human rights are impacted disproportionately by a decision, the Court can look at things more widely than as a pure judicial review. Was that done in this case?

Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School [2006] UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19; (“Miss Behavin’“))

Thus, in SB, Lord Bingham said (at [29]):”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;

and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at [31]).

And I ask, what the practical outcome on children and families of having Courts wish to obtain expert evidence to achieve a fair result in a case but being prevented from doing so, would be?}

The LSC relied heavily, as they would, on section 22 (4) of the Access to Justice Act, which provides that costs should not fall on a publicly funded party that would not otherwise have fallen on the party if they were not publicly funded. [Of course, that Act was written at a time when the sheer volume of unrepresented litigants could not be foreseen, as it was pre LASPO, and I have yet to see whether the judgment wrestled with whether s22 (4) in these circumstances led to an incompatibility with section 1 of the Children Act 1989]

And the LSC thus argued, and were successful, that the Court would not have made an order that the father or mother pay the entire cost of the expert fee, and that the most the LSC should pay is an equal share, one third.

Where that leaves children, when the question for the Court in all those private law cases where the parents are not both in receipt of public funding (i.e nearly all of them) and the Court consider that an experts report is necessary to determine the case, is somewhere towards the source of the Swannee.

*( I think it would need to be both parents getting funding, since the same principles would apply to ‘parent gets public funding as a result of say domestic violence, would still be the LSC saying that they would only pay the share matched by the other parent)

Can a Court, in fact, order that a parent pay for the costs of a report? They are an adult, and I think the Court are in difficulties ordering an adult to incur costs, or to do anything (short of injunctions). The Court can merely say, if you want to run your case, then there will be consequences for your case if you don’t comply with the directions that have been made. Ordering an adult to do something, or pay for something seems to me to need some statutory basis for the Court having that jurisdiction.

So the Court can of course say “If you want to obtain this report and rely on it, then you will have to pay half of the costs. No costs, no report.”

But that doesn’t help, because of course, when you have two parties to litigation, one of them has a vested interest in not obtaining such a report. They are happy not to have it done.

And will any expert take on an instruction where the parents are paying privately? If it were me, I would want cash up front, because how would I get the payment from a mother if my report says something she doesn’t want to hear? Even if the parent is happy with the report, once they have it in their hands, what is the incentive to pay for it? So, cash up front is the only way.

And we are back, again, to the concept that money can buy you a better service in the family Courts (a parent on income support who wants a report on how their child’s Asperger’s Syndrome might impact on a shared residence arrangement is not going to get one, whereas a parent who is a quantity surveyor say can get the report)

It doesn’t feel too great to me, that in private law cases (and contrary to what the Family Procedure Rules say) the key question for a Court considering the need for an expert report is not

“Is this report necessary to assist the Court to resolve the proceedings” but

“Who will pay for this report?”

[Also, eek, will the LSC now try to clawback all of the expert fees that they have paid out to solicitors representing rule 16.4 guardians in the past?]

[Addendum – very grateful to 11kbw who have the judgment up on their website http://www.11kbw.com/judgments/docs/PNTCJudgment.pdf

readers can form their own impression as to whether the right of parties to a fair trial, and the issues of whether a broad principle that if parties can pay for a report it shouldn’t all fall on the LSC has been blurred with LASPO whereby a party can now be not in receipt of public funding although they have no means to pay for representation or disbursements. For my part, I thought an awful lot of the judgment was on the “well, we won’t be having those experts anymore, and this just helps with that” side of the fence.

For example para 67:-

“If the children’s guardian is of the view that the issues identified are beyond his or her skill and expertise, the Court may be minded to ask CAFCASS whether the case can be co-worked by an extended scope practitioner who if necessary can be appointed as a joint guardian”

The exceptions aren’t set out in detail , but are touched on in principle at para 87, the LSC having argued that the Court would have no jurisdiction even in extraordinary circumstances (the report being absolutely necessary, and the Court having carefully explored whether the other parties could pay a share or a reduced share) and the Court knocked the LSC back on this, though no other point; and said that there WOULD be circumstances in which if the report was necessary and there was simply no other way, the LSC might be ordered to pay for it.

[Although they don’t need to follow a court order, don’t need to appeal it, and there’s no legitimate expectation for a child’s solicitor that a court order ordering the LSC to pay for it will ever result in a cheque being written, so hooray!]

The overwhelming message I take away is – don’t worry too much about how you are going to fund experts, because there won’t be any. Bearing in mind that this judgment was prepared by the Judge seized with responsibility for modernisation of family justice, that’s an important message. But read it and decide for yourselves, it is very possible that I am being deeply unfair. ]

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Posted in case law, costs, experts and tagged jg v lsc, judicial review, legal aid agency. expert fees, legal services commission, sharing expert costs, sharing expert fees. Bookmark the permalink.

“It’s not rocket science”

Posted on April 10, 2013 by suesspiciousminds

A not-law piece, about… rocket science.

That phrase, “It’s not rocket science” is one that people, including myself use all the time. I am broadly aware of the general principles of rocket science – you have a fuel, an ignition source and the fuel burns producing a downward thrust force, which drives the rocket forward.

What I didn’t know, until I happened across a marvellous book about the development of the fuel and ignition source, was just how much was involved in it, and how dangerous the whole history of rocket science really was.

This book is called “Ignition!” by John D Clark, a bona fide rocket scientist, and a man who was involved in the process of identifying, inventing, and testing, chemicals to be used in rocket science, both in terms of missiles to be shot at people (he didn’t deal with the payload stuff, just the ‘how to get the missile to fly about’ bit) and the space race rockets.

It is an incredible book, packed with not only hard science (if you want to know the ins and outs, you will find it there), but the human stories of how things came about, the competing interests of various groups, some idiotic bureaucracy, and lots and lots and lots of explosions. And I just love the writers style, and as a science geek, I found it funny as hell.

This passage, for example

The old destroyer gun turret which housed our card-gap setup had become a bit frayed and tattered from the shrapnel it had contained (The plating on a destroyer is usually thick enough to keep out the water and the smaller fish ) So we had installed an inner layer of armor plate, standing off about an inch and a half from the original plating

And, as the setup hadn’t been used for several months, a large colony of bats —yes, bats, little Dracula types —had moved into the gap to spend the winter

And when the first shot went off, they all came boiling out with their sonar gear fouled up, shaking their heads and pounding their ears They chose one rocket mechanic —as it happens, a remarkably goosy character anyway—and decided that it was ail his fault. And if you, gentle reader, have never seen a nervous rocket mechanic, complete with monkey suit, being buzzed by nine thousand demented bats and trying to beat them off with a shovel, there is something missing from your experience.

The book is pretty expensive if you try to buy it (I can see why, if I owned a copy, I would not part with it) . But it is available for free here (and as it is out of print, you aren’t depriving the author of any income)

http://library.sciencemadness.org/library/books/ignition.pdf

There were some major problems that they had to solve. They had to produce a fuel that would burn well, and efficiently (and that was easy to produce and cheap), and an oxidising agent that would make that fuel burn (again, that would do the job well and efficiently, and that was easy to produce and cheap)

They then needed also to have both of those chemicals be reasonably stable. If you are burning the hell out of tonnes of fuel to make a rocket go, you want that burning process to be safe and controlled and not to just blow up on the launchpad.

You also want the oxidising agent and the fuel to be safe – safe to store, safe to have sat in a rocket , safe to move about, safe to pour.

You also need the liquids not to boil too quickly and turn into gas. That would be bad. You also need them not to freeze too easily and turn into non-burning solids.

[This is a pretty big deal, both for space, and for firing rockets at the sort of places the Americans and British were thinking of firing rockets at during the forties and fifties, which were pretty cold places…]

And you want these chemicals not to react with the rocket itself, not to dissolve it, or undergo any sort of chemical reaction, or turn to tar or sludge or what have you.

A fundamental problem with all that being – in order to have a really efficient fuel and a really efficient oxidising agent (because every pound of fuel has to be lifted, you want them to be doing a good job of producing thrust) tend to be lively, reactive and insanely dangerous chemicals in their own right, and what you are doing in rocket science is putting both in close proximity. So the stuff that works is dangerous, the stuff that is safe doesn’t work, and making the dangerous stuff still work but not kill everyone around it means inventing new stuff, so not cheap.

The book really recounts all of the work that went into solving these multiple problems; most of which were resolved by finding, or even inventing, the most dangerous sorts of chemicals you could imagine (generally putting as much nitrogen, hydrogen or fluorine as possible into them), making them blow up a lot and then trying to find something you could add to them that would make them safer without ruining their efficiency too much.

There really are LOTS of explosions.

If you remember any of your chemistry from school, the fact that the early rocket scientists hit upon nitric acid as their liquid oxidising agent might make you a bit nervous. The fact that the brands of choice of nitric acid were known as “Red Fuming Nitric Acid” and “White Fuming Nitric Acid” even more so.

“The only possible source of trouble connected with the acid is its corrosive nature, which can be overcome by the use of corrosion resistant materials.”

Ha! If they had known the trouble that nitric acid was to cause before it was finally domesticated, the authors would probably have stepped out of the lab and shot themselves.

This is Clark’s description of one early trial, WFNA is the White Fuming Nitric Acid I spoke of a second ago

Came the day of the first trial. The propellants were hydrazine and WFNA. We were all gathered around waiting for the balloon to go up, when Uncle Milty warned, “Hold it —the acid valve is leaking!”

“Go ahead —fire anyway!” Paul ordered.

I looked around and signaled to my own gang, and we started backing gently away, like so many cats with wet feet.

Howard Streim opened his mouth to protest, but as he said later, “I saw that dogeating grin on Doc’s face and shut it again,” and somebody pushed the button.

There was a little flicker of yellow flame, and then a brilliant blue-white flash and an ear-splitting crack. The lid to the chamber went through the ceiling (we found it in the attic some weeks later),the viewports vanished, and some forty pounds of high-grade optical glass was reduced to a fine powder before I could blink.

And Red Fuming Nitric Acid?

The RFNA of 1945 was hated by everybody who had anything to do with it, with a pure and abiding hatred. And with reason. In the first place, it was fantastically corrosive. If you kept it in an aluminum drum, apparently nothing in particular happened —as long as the weather was warm. But when it cooled down, a slimy, gelatinous, white precipitate would appear and settle slowly to the bottom of the drum.

This sludge was just sticky enough to plug up the injector of the motor when you tried to fire it. People surmised that it was some sort of a solvated aluminum nitrate, but the aversion with which it was regarded was equaled only by the difficulty of analyzing it.

If you tried to keep the acid in stainless steel (SS-347 stood up the best) the results were even worse. Corrosion was faster than with aluminum, and the acid turned a ghastly green color and its performance was seriously degraded. This became understandable when the magnitude of the change in composition was discovered. Near the end of 1947, JPL published the results of two acid analyses.

One was of a sample of RFNA fresh from the manufacturer, which had scarcely started to chew on the drum in which it was shipped. The other was a sample of “old” acid, which had been standing for several months in a SS-347 drum. The results were eloquent And, if my own experience is any criterion, there was a bit of insoluble matter of cryptic composition on the bottom of the drum. Acid like that might have been useful in the manufacture of fertilizer, but as a propellant it was not.*

So the acid couldn’t be kept indefinitely in a missile tank — or there wouldn’t be any tank left. It had to be loaded just before firing, which meant handling it in the field.

This is emphatically not fun. RFNA attacks skin and flesh with the avidity of a school of piranhas. (One drop of it on my arm gave me a scar which I still bear more than fifteen years later.) And when it is poured, it gives off dense clouds of NO2, which is a remarkably toxic gas. A man gets a good breath of it, and coughs a few minutes, and then insists that he’s all right. And the next day, walking about, he’s just as likely as not to drop dead.

So the propellant handlers had to wear protective suits (which are infernally hot and so awkward that they probably cause more accidents than they prevent) and face shields, and frequently gas masks or self-contained breathing apparatus

Things didn’t go much more smoothly when they tried using peroxide as the oxidising agent instead of nitric acid

But here an unexpected complication showed up. The peroxide was to be stored aboard airplane carriers in aluminum tanks. And then suddenly it was discovered that trace quantities of chlorides in peroxide made the latter peculiarly corrosive to aluminum. How to keep traces of chloride out of anything when you’re sitting on an ocean of salt water was a problem whose solution was not entirely obvious.

And there was always the problem of gross pollution. Say that somebody dropped (accidentally or otherwise) a greasy wrench into 10,000 gallons of 90 percent peroxide in the hold of the ship. What would happen —and would the ship survive? This question so worried people that one functionary in the Rocket Branch (safely in Washington) who had apparently been reading Captain Horatio Hornblower, wanted us at NARTS to build ourselves a 10,000-gallon tank, fill it up with 90 percent peroxide, and then drop into it —so help me God —one rat. (He didn’t specify the sex of the rat.) It was with considerable difficulty that our chief managed to get him to scale his order down to one test tube of peroxide and one quarter inch of rat tail

And chlorine trifluoride (which even my 25 years ago recollection of chemistry just makes me go “NO! what are you thinking? Don’t open that bottle” ) didn’t go a whole lot better [hypergolic by the way, means spontaneously igniting – a very very good quality in rocket fuel, bad for people testing it who like to have a full complement of fingers]

Chlorine trifluoride, ClF3, or “CTF” as the engineers insist on calling it, is a colorless gas, a greenish liquid, or a white solid. It boils at 12° (so that a trivial pressure will keep it liquid at room temperature) and freezes at a convenient —76°. It also has a nice fat density, about 1.81 at room temperature.

It is also quite probably the most vigorous fluorinating agent in existence— much more vigorous than fluorine itself. Gaseous fluorine, of course, is much more dilute than the liquid ClF3, and liquid fluorine is so cold that its activity is very much reduced.

All this sounds fairly academic and innocuous, but when it is translated into the problem of handling the stuff, the results are horrendous. It is, of course, extremely toxic, but that’s the least of the problem.

It is hypergolic with every known fuel, and so rapidly hypergolic that no ignition delay has ever been measured. It is also hypergolic with such things as cloth, wood, and test engineers, not to mention asbestos, sand, and water —with which it reacts explosively. It can be kept in some of the ordinary structural metals — steel, copper, aluminum, etc. —because of the formation of a thin film of insoluble metal fluoride which protects the bulk of the metal, just as the invisible coat of oxide on aluminum keeps it from burning up in the atmosphere.

If, however, this coat is melted or scrubbed off, and has no chance to reform, the operator is confronted with the problem of coping with a metal-fluorine fire. For dealing with this situation, I have always recommended a good pair of running shoes.

And even if you don’t have a fire, the results can be devastating enough when chlorine trifluoride gets loose, as the General Chemical Co. discovered when they had a big spill. Their salesmen were awfully coy about discussing the matter, and it wasn’t until I threatened to buy my RFNA from Du Pont that one of them would come across with the details.

It happened at their Shreveport, Louisiana, installation, while they were preparing to ship out, for the first time, a one-ton steel cylinder of CTF. The cylinder had been cooled with dry ice to make it easier to load the material into it, and the cold had apparently embrittled the steel. For as they were maneuvering the cylinder onto a dolly,

it split and dumped one ton of chlorine trifluoride onto the floor. It chewed its way through twelve inches of concrete and dug a threefoot hole in the gravel underneath, filled the place with fumes which corroded everything in sight, and, in general, made one hell of a mess.

If you want to know more about chlorine trifluoride, I can recommend the wonderful In the Pipeline blog, where Derek Lowe talks about it in his wonderful column “Things I won’t work with”

http://pipeline.corante.com/archives/2008/02/26/sand_wont_save_you_this_time.php

Let’s put it this way [Derek says]: during World War II, the Germans were very interested in using it in self-igniting flamethrowers, but found it too nasty to work with.

And points out that it is so reactive, it cheerfully sets fire to wet sand. To wet sand. The stuff that you keep in labs to throw on chemicals that are reacting too violently, to get the reaction to stop. Not much sets wet sand on fire.

If you are even more curious, you can see some footage of some insanely brave French scientists testing out how reactive chlorine trifluoride is here

http://pipeline.corante.com/archives/2013/04/05/chlorine_trifluoride_some_empirical_findings.php

A seriously seriously scary chemical.

And back in the Fifties, the author of Ignition was not only using that chemical, but working out how it could be mixed with liquid hydrogen and how quickly it would burn…

There’s a lovely passage where he is advising a fellow scientist not to go near a chemical called Ethyl Perchlorate (frankly, if Clark of all people is telling you that a chemical is too dangerous to use, you really really really should listen to him, but they didn’t)

I read in a Wyandotte report that they intended to do this, and phoned Bill to read to him what Sidgwick, in “Chemical Elements and their Compounds,” had to say on the subject of the ethyl compound.

“Hare and Boyle (1841) say [Sidgwick wrote] that it is incomparably more explosive than any other known substance, which still seems to be very nearly true. . . . Meyer and Spormann (1936) say that the explosions of the perchlorate esters are louder and more destructive than those of any other substance; it was necessary to work with minimum quantities under the protection of thick gloves, iron masks [Ha, there, M. Dumas!], and thick glasses, and to handle the vessels with long holders.”

But Cuddy (presumably investing in leather gloves and an iron mask first) went ahead anyway. He told me later that the esters were easy enough to synthesize, but that he and his crew had never been able to fire them in a motor, since they invariably detonated before they could be poured into the propellant tank. It is perhaps unnecessary to add that this line of investigation was not further extended.

The chemicals would detonate during the act of POURING it into the fuel tank. That is some lively stuff.

Anyway, “Ignition!” is a great book (and if any book earned the right to have an exclamation mark at the end of its title, it is this one) whether you are a hard scientist or you just like reading about really brave men making things blow up in dazzlingly different ways.

It has given me a new found respect for rocket science, as well. I had thought it was largely maths and engineering, but it was clearly proper lunacy going on too. Perhaps our job isn’t as tough as we imagine.

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Posted in stuff that isn't law at all and tagged chloring trifluoride, explosions, ignition!, rocket science. Bookmark the permalink.

Transformers…. Cutting robots in disguise

Posted on April 9, 2013 by suesspiciousminds

One might have thought that in the week that LASPO kicked in, with huge chunks of areas of legal representation being taken out of the legal aid system, the Government might let those lawyers who survived and are still reeling have a little bit of respite.

You fools! Of course not. Following some sort of Sun Tzu Art of War philosophy, the Government have decided that the best time to kick people is when they are down.

Hence

“Transforming Legal Aid” – a new consultation (and we all know how ‘consultation’ works)

https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

Here’s the waffle

6.6 Progress is currently being made to reduce the average duration of care cases through the implementation of the Family Justice Review reforms90 which should have the effect of reducing the unit cost of cases by tackling delay and streamlining cases, for example through reducing the use of experts.91 The national average duration of care cases has already reduced from around 54 weeks to around 45 weeks.92 The aim is to achieve an average of 26 weeks in all but exceptional cases, and this time limit will be enshrined in statute subject to parliamentary approval of the Children and Families Bill.93 Associated efficiencies in court proceedings are planned in support of this time limit. For example, the recent introduction of a new Part 25 of the Family Procedure Rules in January 2013 which requires the court to restrict expert evidence to those circumstances where it is necessary to assist court proceedings. This requirement will also be enshrined in statue through the Children and Families Bill94 which, subject to Parliamentary approval, is expected to receive Royal Assent next year. In reducing the commissioning of unnecessary expert reports, this requirement should also reduce the related work for solicitors. It is also expected that further efficiencies currently under development might also reduce the average number of hearings required in a case.

6.7 As the fee paid to solicitors for their work on a case is fixed, the cost of dealing with fewer experts or fewer hearings would not automatically adjust to reflect the likely reduction in the work required of solicitors (whereas any reduction in the number of hearings would lead automatically to a reduction in advocacy costs, as these are calculated on the basis of hearing fees). We consider that the legal aid fee paid for these proceedings should represent value for money and therefore reflect more closely the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.

That’s all very long – what do they mean?

Well, now that care proceedings will be only lasting twenty six weeks (which, I hasten to remind everyone is a PROPOSAL which has not even been discussed by Parliament), that will mean less work has to be done by the lawyers, so we should pay them less.

How much less?

Ten per cent.

[Never mind that we don’t actually know yet the structure that would allow care cases to be concluded within 26 weeks, or that as I pointed out yesterday, NINE YEARS of striving to get care proceedings concluded within 40 weeks has resulted in more local authorities having an average length of proceedings ABOVE 60 weeks than BELOW 40, so there is no way of knowing whether a lawyer would be doing more or less work, or whether the aspirations for 26 weeks are going to be any more effective than the last nine years of targets]

6.10 We propose to reduce the representation fee paid to solicitors in public family law cases by 10%. We consider that this is a reasonable reflection of the decreasing duration of cases in this area, the amount of work involved and the further efficiencies to be gained.

6.11 This proposed reduction would apply to the current fixed fees under the Scheme. In addition, to promote efficient resolution of cases and avoid creating any incentive to delay, it would apply to the hourly rates that are payable where a case reaches the escape threshold.

And experts?

Waffle time

7.9 The current codified rates were introduced in October 2011. Prior to that time, there were no set rates for expert services, generally, and therefore little effective control over their cost. Instead, contracted legal aid solicitors, who remain responsible for engaging relevant experts as and when necessary, would bill the then LSC after the service had been provided and paid for, based on the fee requested by the individual expert in the particular case. The initial codification of expert rates therefore represented a necessary first step in providing clarity and control over spend on experts, while continuing to ensure access to necessary expert services as and when required.

Upshot? Fees to experts to be cut by 20 per cent

I know that this blog is read by people who aren’t lawyers, and aren’t experts, and they may well be thinking – good, cut the costs of these fat cats. That’s certainly the Daily Mail take on it (a good rule of thumb in life, I find, is where you find yourself agreeing with the Daily Mail take on anything, you probably need to take a hard look at either yourself or the facts)

The reality is that if you cut the income of a group of professionals by 10% one year and 10% the next (lawyers) or 20% in one fell swoop (experts), then some of them will go under. That means less choice, less availability, more delay, less chance that the parents who need them will be able to get them.

The ones that do keep going will be forced to do more work for less money, which means spending less time on each case. If we want the best chance of proper justice for families, the lawyers instructed by parents need to have the ability to give the proper time that it takes to prepare a case, to form a proper meaningful relationship with the parent so that there is understanding on both sides and to give advice that is based on that solid understanding of both the facts and the people.

And if you think this is the end of the cuts, you’d be mistaken. If the Government manage to push through removing huge swathes of free legal advice, and cut the income of those who are left by 20% in two years, they will be back again for another cut in 2014, 2015 until there is nothing left to cut. [Ideally perhaps to the point where solicitors doing family law will pay the Government for each case they take on]

Consultation responses to this new document are due by June 2013 – the response details are on the link I started with. I found myself seriously pondering Edmund Burke’s words when thinking about this.

Our new Minister for Justice, the Rt Honourable Mr Megatron, reporting for Efficiency Saving duty. Tremble before him

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Posted in consultation, costs, experts and tagged consultation on legal aid, cuts to family legal aid, cuts to legal aid, expert fees, legal aid, solicitors fees, transforming legal aid. Bookmark the permalink.

“It is not down on any map, true places never are”

Posted on April 8, 2013 by suesspiciousminds

The DFE Adoption maps and what we can learn from them, if anything

The DFE have published their adoption maps, whilst repeating over and over that these are not a judgment on local authority performance. Much in the same way that listing all of the countries job centres in tabular form, with those who have achieved the highest number of stopping people’s benefits is not a league table, or an indication that stopping people’s benefits is considered to be a good thing.

Anyway, I love maps, and I thought there were some interesting things to emerge from them. Plus, the chance for this title, which is probably my favourite line in all literature (it is from Moby Dick, and the nearest competitor is probably Hotspur’s rejoinder to Glendower’s “I can call spirits from the vasty deep” – “Why so can I, or so can any man. But do they come when you do call for them?” )

Also, it lets me make reference to another of my favourite passages, from The Hunting of the Snark

He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.

I’m not sure that the DFE maps constitute a map we can all understand, though there are some who would claim it has as much meaningful content as the map in Hunting of the Snark. Certainly, if we apply the Bellman from Snark’s rationale that “What I tell you three times is true” then it is not intended to be a comparison of Local Authority performances *

[And for an excellent analysis of the “What I tell you three times is true” motif, see this wonderful piece from Inky Fool – which tells you the derivation of that annoying habit people have of politely refusing something twice and then accepting it at the third time of asking. It all arose with a polite convention about what you are supposed to do if someone asks you to become a bishop. I wish that I had written it, but as I liked it so much, the least I can do is steer others towards it. If you are ever asked to become a bishop, now you know the polite convention

http://blog.inkyfool.com/2010/04/nolo-episcopari-and-rule-of-bellman.html ]

Enough literature, on with the maps!

http://www.education.gov.uk/childrenandyoungpeople/families/adoption/a00219985

The main DFE caveat with the maps is that they only include figures for adopters approved by Local Authorities and none by any voluntary adoption agencies. The main gripe from the Local Authorities is that looking at a map just tells you something bald, and you can’t compare, say Leicestershire and Liverpool without knowing something about the size of population and social problems that each might have.

Anyway, there are several maps, but the one I was most interested in was Map B

http://media.education.gov.uk/assets/files/pdf/m/map%20b%20number%20of%20children%20waiting%20for%20each%20adopter.pdf

Map B does a clever little exercise – for each Local Authority, it takes all of the children in that area who are waiting to be adopted (i.e where an Adoption Panel / Agency Decision Maker has considered that adoption is the plan and where a Court has made a Placement Order) and compared that to the number of adopters that that Local Authority has approved.

In an ideal world, you would want 1 adoptive family approved for every child that you are looking to place (maybe even ideally slightly higher than that, to give you some choice, though of course, some adopters are looking to adopt 2 children).

What it tells you is, notionally speaking, if a Local Authority decided that they were going to match every single adoptive family with a child on their books, whether they would have adopters left over, or children left over. And how many.

For children waiting to be adopted, this map is bad news. The lowest category, the darkest blue, is where there are 2 or fewer children waiting for each approved adopter.

The highest category, the yellow, is where there are between 11 and 23 children waiting for each approved adopter.

Now, whilst some adopters are prepared to adopt two children (and thus the navy blue Local Authorities might be able to clear their children waiting for adoption if they could theoretically match up all the children with all the adopters), there aren’t adopters waiting to adopt eleven or twenty three children.

Meaning that if one did that notional exercise, matching every adopter up with as many children as they were prepared to take, the yellow authorities would have barely put a dent in the children needing to be placed (maybe reducing the number of children waiting by 20%, maybe 10%, maybe even less)

Green authorities have between 6 and 10 children waiting for each approved adopter.

So, the more yellow and green authorities there are, the worse it is for children waiting to be adopted.

How many dark blues are there? I made it about fifty.

And yellows? I made it about 13, with 19 greens.

Bear in mind, that what often happens is that one local authority places children for adoption with adopters approved by another local authority. But you can see that even the best authorities don’t have adopters left over (compared to the number of children that need families) and that even spreading out the yellow and green authorities additional families across the country doesn’t solve the problem.

Nationally, we have far more children needing to be adopted (* Anticipating the comments, by which I mean children where a Court has heard evidence and argument and decided that adoption is the right plan for them) than there are people approved as adopters.

Equally, you can see that whilst the Midlands is pretty evenly matched between children needing placements and placements available, the East of the country and the South/South East of the country is pretty bad, with there being no neighbouring counties to raid for adoptive placements, since they are all struggling to meet their own demands.

It is a shame that the independent adoption agencies figures are not in there, it may well be that those figures would dramatically alter the position.

It is a worry, however, that the demand for adoptive placements is substantially outstripping the supply of such placements. That leads to delay, of course, it leads to some children not being able to be found placements, and inevitably it needs to a situation where the chance to place difficult children (in large sibling groups, or with profound problems, or with a family background of mental health problems) becomes much harder.

Perhaps the Government’s ambitious thinking that there are four million potential adopters out there and that more can be converted from potential to actual if the process is made less bureaucratic and terrifying is right, and that the problem can be addressed by better recruitment.

[There’s a curious little spreadsheet tucked away with some hard data

http://media.education.gov.uk/assets/files/xls/a/adoption%20scorecard%20underlying%20data.xls

I liked looking at the average duration of care proceedings in each authority, given that we are told that 26 weeks will be coming in, and we have been ostensibly working on an average target of 40 weeks for NINE YEARS now. Yes, the Protocol, god rest its soul, would have been ten years old this November.

I counted 11 of the 149 authorities that had an average duration of care proceedings of 40 weeks or under.

Let’s look at 50 weeks – that being 25% longer than the current target. I counted NINETY SIX authorities where the average duration of proceedings was 50 weeks or longer. There were some, not many, but some, that were over 60 weeks (i.e 50% longer than the current target) – 18 in all.

So actually, there are MORE authorities going 50% OVER the current target than there are going UNDER the current target. After NINE YEARS of pressure to get the duration down to 40 weeks ]

[A completely irrelevant footnote – as a blogger, I have a spam filter, and I get the most extraordinary spam comments, most of which are thinly disguised links to fake sunglasses or handbags, some are extraordinary Williams Burroughs-esque stream of consciousness masquerading as genuine dialogue. Today, however, I got a spam link from someone purporting to be from a website named “Toddler-hitting.org” which might really have missed its target audience completely. I did not follow it up, I don’t think its likely to be my cup of tea]

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Posted in adoption and tagged 26 weeks, 40 weeks, adoption maps, adoption performance, adoption target, approved adopters, average duration of care proceedings, how long do care proceedings last, protocol, Public Law Outline. Bookmark the permalink.

“How’s that?”

Posted on April 5, 2013 by suesspiciousminds

When does judicial intervention cross the line into being improper and showing bias?

I recently read a very good piece on Lawtel [other law reporting websites are available] written by Stephen Gerlis, reporting on the Court of Appeal case ofHadi Jemaldeen v A-Z Law Solicitors 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1431.html

As the piece is behind a paywall, and about a civil case, the issues probably won’t have come to everyone, so I thought it was worthy of a discussion in the family law context – with a nod of the hat to Mr Gerlis for his originating piece.

The importance of the case is that the appeal hinged on whether the Judge who had heard the case had overstepped the mark when exercising control of the questions and posing his own questions, such that the appellant considered him to have been biased.

This led the Court of Appeal to run through the authorities on judicial interventions, and as we are about to embark on a brave new world of litigants in person (whether they wish to be or not) this may be an issue that crops up from time to time. It is that consideration of where the line is drawn that is potentially of interest.

I liked this quotation from Lord Denning (hence the title)

“The Judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law”.

That authority is from Jones v National Coal Board [1957] 2 QB 55. and the temptation to be able to quote a case about the National Coal Board AND Lord Denning in any family case is almost overwhelming. We don’t get much opportunity to crowbar Lord Denning into family law cases.

[The only thing I am more tempted to say in Court, which I duly resist every time is “Does Magna Carta mean nothing to you? Did she die in vain? ” ]

The Court of Appeal set out that the test, when looking at how the Judge managed the trial/hearing is

20. “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

Which principle is derived from the House of Lords in Magill v Porter [2001]UKHL 67, [2002] 2 AC 357.

Going back to the Coal Board case (and why wouldn’t we?)

In pursuit of that fundamental objective the judge is not required to sit silent as the sphinx. Appropriate intervention while a witness is giving evidence, even while the witness is being cross-examined, is not merely permissible but may be vital. As Denning LJ put it (page 63):

“No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.”

He continued (page 64):

“The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate”.

So there is nothing objectionable, for example, in a judge intervening from time to time to make sure that he has understood what the witness is saying, to clear up points that have been left obscure, to make sure that he has correctly understood the technical detail, to see that the advocates behave themselves, to protect a witness from misleading or harassing questions, or to move the trial along at an appropriate pace by excluding irrelevancies and discouraging repetition. Indeed, it is, as Denning LJ recognised (page 65) his duty to do so.

So the Judge can appropriately ask questions to clarify, or to check that she has understood, she can prevent inappropriate questions being asked, and she can tell everyone to get a move on once the point has been explored sufficiently.

What CAN’T the Judge do? She must not ‘descend into the arena’

But there is, of course, a difficult and delicate balance to be held. The judge must not, as it is often put, descend into the arena. Denning LJ referred (page 63) to Lord Greene MR, who in Yuill v Yuill [1945] P 15, 20, had:

“explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”.

Denning LJ continued (page 64) that it is for the advocate to make his case;

“as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost.”

Where the interventions can potentially overstep the mark is during cross-examination. [Back to the Coal Board again – underlining my own]

Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return .”

And as, much like Marty McFly, we are no longer in the Fifties, the Court of Appeal added this

one of the changes in civil litigation since 1957, when Jones v National Coal Board was decided, is that more attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case: CPR Part 1.1. An advocate can no longer expect to have unlimited time in which to conduct his cross-examination

[And towards the end, the Court of Appeal refer to a recent family case Re J (A child) [2012] EWCA Civ 1231 in which the Judge’s interventions and curbing of cross-examination prevented the matters which went to the very heart of the case being put, and which did end up overturning the original decision]

As this was a civil case, the decision eventually reached on the case before the Court of Appeal isn’t that important, but you can probably guess from this brief extract from the original trial transcript (Professor Rees being the appellant saying that the Judge had unfairly interrupted him) what the end result of the Appeal was

“THE RECORDER: I am interrupting your cross-examination.

PROFESSOR REES: No, it is very welcome, your Honour.

THE RECORDER: You had better ask the questions you want to ask.

PROFESSOR REES: Okay. Thank you, your Honour. But it is helpful to have these interventions, if I may say so, because ultimately your Honour has to decide this case and …

THE RECORDER: Well, if you put a document in which nobody has opened on, the witness has never see before, it is fairer for him and for me to try and work out what this document is supposed to be telling us all.

PROFESSOR REES: Absolutely, yes …”

[Hint, if you are going to claim in an appeal that a Judge unfairly interrupted you, don’t at the time, tell the Judge that the interventions are helpful and very welcome]

2 Comments

Posted in case law and tagged bias, interruption of cross examination, judge interfering with cross examination, judicial bias, judicial interruption, judicial intervention, the importance of cross-examination. Bookmark the permalink.

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