Category Archives: children and families act 2014

Faking medical evidence

Posted on October 27, 2014 by suesspiciousminds

This is a County Court case (if there is such a thing any more, I have largely decided to ignore most of the Children and Families Act 2014 and just wait for the reboot restoring all the terminology to the way it was). So it isn’t precedent, and isn’t one of those case that you HAVE to read.

It is unusual though, and I am grateful to one of my readers (waves at Cara) for drawing it to my attention.

Re E (a child) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B136.html

This is a private law case, albeit one with a Social Services flavour. In effect, when mum and dad separated and got themselves embroiled in an argument about contact (see, I told you that I was just going to ignore the new terminology) dad started to become enamoured with the idea that if he could show the Court that mum was abusing the children, that would improve his own case.

In part, this involved him making a series of allegations to his GP, Dr C, and getting Dr C to take up the battle on his behalf and trying to get Dr C to make referrals to Social Services about how mum was abusing the children. That’s not nice, but it isn’t necessarily unlawful.

What IS unlawful, is that when the father produced documents to the Court provided by Dr C and signed by Dr C, they were partially faked.

There were a string of findings that the Judge was invited to make, but these are the pivotal ones for our discussion

The father has perverted the course of Justice:

a) The father has amended and/or created a false statement purporting to be from his GP, Dr C dated 4 October 2013, and forged his signature on the statement and then filed and served the statement with the court;

b) The father has amended and/or created a false second page to a letter originally written by Dr C dated 15 August 2013 and forged his signature upon the letter then filed and served the letter with the court in support of his application to call Dr C to give evidence. Both allegations are admitted by the father.

c) Altered the recording of E that he played to the police and to Dr C and presented it in edited form with the court to present a dishonest and/or misleading account of the original content. The father admits this allegation save that he does not accept producing a dishonest account.

For reasons that I cannot fathom at all, having produced this fake evidence from Dr C, the father was very keen indeed for Dr C to attend Court and give evidence. There’s a phrase ‘cognitive distortion’ which relates to when someone is so deep into their own lies that they start to believe them, and I can only think that this father for some reason thought that calling Dr C as a witness in the case was not (as you or I would think) a sure-fire way of exposing the documents as being fake, but in some way going to improve his case.

On 11 February 2013 [location redacted] Social services sent an email to Dr C informing him that Mr P had contacted them and had suggested that he, Dr C, had further concerns about E. They asked him to complete a referral form if that was the case. The doctor completed the referral form in which he stated:

“ The actions of the mum towards E are causing concern to E and the father R. Including withholding medicines, safety issues making her cross the road on her own, leaving her outside in the street, forcing cough syrup….” The father admits tippexing out the words which followed this entry before he filed the document with the court.

[Tippex is perhaps not the most sophisticated method of forging a document. It is rather beneath the level that one expects of a forger. Colin in The Great Escape, for example, would not have stooped to using tippex to create his German identity papers for those escaping POWs]

The father within the proceedings had also involved the media

During the course of these proceedings the father on two occasions threatened to tell his story to the press. On two occasions two judges, DDJ Murphy and HHJ Allweis warned him not to do so. However on [date in early 2014 redacted] 2014 an article appeared in the [name of newspaper given] in which the father’s account of his battle for residence and contact are repeated alongside a pixilated photograph of himself and E. Although the names were changed it was not too difficult for anyone in the relatively small local Jewish community to identify the parties. He gave the reporter details of her school so that the head teacher was interviewed. Her mother was also approached by the reporter.

In his statement the father acknowledged that what he did was wrong. The consequences for him have been stark as E has now refused to see him and the future of his contact is now uncertain.

The Judge gave judgment specifically on the consequences for father of having falsified documents lodged with the Court and relied upon

The father’s action in respect of the falsified documents

With regard to the falsifying of evidence. I find that the father falsified the letter from Dr C dated 15 August 2013 addressed to [location redacted] County Court at page C182 in the bundle by amending the second paragraph the paragraph at the bottom of page C182/3. He then forged the doctor’s signature. Thereafter he filed the document with the court as part of his evidence in the case. The letter which Dr C had signed is to be found at C 183(a).

I find that the father submitted a statement dated 4 October 2013 which he knew to be false in that it had not been approved or signed by Dr C purporting it to be a genuine document knowing that it would be used in litigation in the private family law proceedings being conducted in the County Court. This to be found at page C201.

The consequences of his actions are that there could have been a miscarriage of justice which could have affected the welfare of his daughter.

This is a serious and potentially criminal act. I have come to the conclusion that it warrants reporting the matter to the DPP for her to consider what if any action to take. A copy of my judgment and copies of the letters dated 15 August 2013 and the statements dated 4 October 2013 and 10 October 2013 shall be disclosed to the DPP or the police.

The Judge was also invited by those representing the mother to consider a referral to the General Medical Council in relation to Dr C, who had become embroiled in the litigation and had neglected his duties of fairness and safeguarding. Dr C had also learned that the father had submitted a fake document to Court but had left it up to father to own up rather than alerting the Court to this deception.

The role played by Dr C

The mother supports the guardian in submitting that the doctor should be referred to the GMC.

The doctor’s involvement has been summarised above in that he knew that the father was involved in a dispute about the welfare of a child which was proceeding before the courts yet he did not exercise caution before writing the letters and making the referrals to social services. He sought to question the child with her father present in order to obtain evidence of abuse.

I accept the submissions of the mother and the guardian. I make the following findings:

i) Dr C was naïve and was manipulated by the father. The evidence suggests that he was targeted by the father as a means of obtaining evidence to further his case. In so doing he allowed E to have unnecessary medical appointments;

ii) Dr C could and should have spoken to the mother. He did not know that the mother was a patient at the practice. A simple check before proceeding to refer to social services would have made him better informed in assessing the issues being raised by the father. He therefore failed to follow the safeguarding guidelines in that he did not provide support to the primary carer, the mother, before making the referral to outside agencies. Speaking to the mother would not have put the child at risk of harm.

iii) Dr C failed to keep an open mind as to the truth of the allegations. In doing so he failed to protect her from the father’s allegations and he allowed the father to be present when the allegations were being discussed. He accepted, and I find, that his letters were too subjective.

iv) Dr C admitted that he was not up to date with his safeguarding training;

v) Dr C’s clinical notes of appointments with E, where allegations of ill treatment were discussed, were not properly kept.

vi) He also admitted that he was not fully aware of the court procedures. This explains his willingness to issue the letters on Practice Headed notepaper. He did not consider what use the father could have made of these letters.

vii) Dr C failed to contact the Cafcass officer or the court to alert them to the fact that the father had admitted to fabricating his statement and had forged his signature and had submitted the statement to the court as evidence in support of his case.

viii) I accept the submission of the guardian that his actions albeit unwittingly, facilitated father’s emotional abuse of E.

I have carefully considered the submissions of the mother and the guardian. I agree that a copy of my judgment and a transcript of Dr C’s evidence should be sent to the GMC so that they can further investigate this matter and take appropriate steps if they consider that this is necessary.

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Ministry of Justice press release – fixxored

Posted on October 23, 2014 by suesspiciousminds

The MOJ sent me this press release today
A new law taking effect today will reinforce the importance of children having relationships with each parent following family breakdown. Parental involvement is the last part of the Children and Families Act 2014 to be implemented and marks the end of a significant phase of reforms to the Family Justice system.

The change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. It will require family courts to presume that each parent’s involvement in the child’s life will further their welfare – where it is safe. However the needs of the child will always remain the paramount priority of the courts.

In 2011 the Family Justice Review landmark report found that the family justice system was ‘no system at all’ and that children’s needs were not being met. Since then the Government has made bold reforms so that the needs of children are firmly at the heart of the family justice system from now on.

The reforms include:
• The introduction of the new Family Court in England and Wales with a simpler single system and a network of single application points making it much easier for the public.
• The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved.
• New child arrangements orders which will encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’.
• Compulsory family mediation information meetings so separating couples must consider alternatives to the harmful and stressful court battles when resolving financial matters and arrangements for children.
• The Government continues to monitor closely the family justice system, and has recently announced a single mediation session for both parties if one of them is already legally aided.

I thought it was in need of a bit of modification, so I have fixed it for them. Here is the new version

The Government held an independent review into Family Justice, which concluded that there was no need for a statutory declaration about ‘equal parental involvement’ – but we ignored that and announced that we’d introduce it, then we got scared off by all the objections, but then we were too scared to admit we were wrong, so we cobbled together some meaningless form of words that achieves nothing and satisfies no one and changes nothing. That new meaningless form of words comes into effect today. You’re welcome!

The reforms include:

Making it so that if there’s an allegation of rape the alleged rapist probably has to cross-examine the alleged victim themselves

Removing legal aid from private law proceedings and hiding behind a “it will happen for cases that deserve it” clause that we secretly brief is never to be used

Having the Children’s Commissioner report that our reforms have had bad consequences for children

Locking the doors to public counters so that nobody can talk to our staff

Using the word “Hub” at every possible opportunity, without ever outlining how these Hubs will be funded or staffed.

Making user-friendly new forms that are utterly unintelligible and take an eternity to fill in

Giving ‘residence’ and ‘contact’ a new name in the mistaken belief that that will make everyone behave reasonably at all times
The introduction of a 26 week time limit for care proceedings to reduce further the excessive delays in these cases and give greater certainty to the children involved (although the Court of Appeal have told everyone that as long as they tick the right box on the new user-friendly form, they can go over the 26 weeks).
Compulsory family mediation information meetings that have a far lower take-up rate than when they were purely voluntary

Introducing Regulations that were beyond the scope and the power of the Lord Chancllor to do so, which were xenophobic in intent and a sop for the right-wing Press / our MPs who were thinking of defecting to UKIP

Did we mention the Hubs?

Yes, I think that’s rather more accurate

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Posted in children and families act 2014 and tagged dark sarcasm in the court room, lord chancellor, ministry of justice, moj. Bookmark the permalink.

Allegations of abuse against a father

Posted on October 8, 2014 by suesspiciousminds

Reported cases in private law where serious allegations of sexual harm are made against a father against a backdrop of separation and acrimony and disputes over the children are becoming more common. They are always extremely difficult. And these days, more and more, they may begin as private law cases but end up as public law cases.

The Court is generally left with four choices when faced with allegations of this kind

The allegations against father are true, with all the consequences that that will mean for his relationship with the children
The allegations are not true, but they were an honest mistake (with the hope that once the Court has given that judgment, everyone can move on)
The allegations are not true, and they were made with the honest belief of the mother that they were true (again, with the same hope as above)
The allegations have been fabricated by the mother with the intention of hurting father and frustrating his contact.

In this case, Hampshire County Council v Mother and Others 2014, there are two linked judgments.

The first http://www.bailii.org/ew/cases/EWCC/Fam/2013/B19.html was in December 2013 and was the finding of fact judgment.

That concluded that the allegations against father were not true, and that mother had played a part in bringing them about

My finding is that while Mother has indeed been the victim of her psychological problems, she has also consciously created some of the allegations here. I have been told that the Guardian is also of the view that there is a combined explanation for the allegations. The timing between contact re-starting and the next allegation being made is too much of a co-incidence for there not to have been some volition on her part. There are also examples of Mother embellishing stories as – the addition of the alleged threat of self harm she over-heard Child make to a nurse or doctor on the 31st August when she was questioned about it by MG is a good example.

It must be understood by Mother that her allegations that Father has sexually abused Child have been found to be totally unfounded, created by her both unconsciously and consciously. She must also understand that what she has done has been hugely emotionally damaging to Child, who will take a long time to recover her own psychological equilibrium, even with her Father’s help. She must never allow herself to make such allegations again, or she will risk never seeing her daughter.

An interim care order had been made in October 2013, placing the girl in foster care.

The second judgment http://www.bailii.org/ew/cases/EWFC/OJ/2014/B126.html

relates to the final decisions in the case, mother having been given six months of time to reflect on the findings and move forward.

Sadly, she had not been able to do so. That led to the child being placed with the father, that mother would have seven contacts per year and that there was a s91(14) order meaning that mother would be unable to make any further applications to Court without leave.

(The Court note in that analysis that it is not lawful to attach conditions to a s91(14) order but did agree that it would help to tell mother the sort of changes that she would need to be making for such leave to be granted)

One of the difficult features in this case was that mother’s position if anything had hardened in that intervening period, probably not helped by the fact that her therapist was supportive of her belief that father had abused the child, and so were her family.

(MG was an expert in the case, who had made some recommendations as to the best way of moving mother forward after the finding of fact judgment)

MG has been cross examined as to her findings and conclusions in this hearing. She said that since the last hearing it is a great pity that her recommendations as to treatment for Mother have not been taken up. She had recommended that Mother be seen by an independent psychiatrist to formulate a treatment plan to reduce her anxieties and her medication. She said that therapy should be found for Mother in conjunction with the psychiatrist. Instead Mother has been discharged by her treating psychiatrist in the NHS mental health service with a diagnosis of “no serious mental illness,” which MG said is regular practice these days by treating mental health professionals. And instead of seeing an independent psychiatrist, she has found a psychotherapist who she consults by webcam, and who has accepted without question everything that Mother has told her about her allegations of sexual abuse against Father. MG said that it is a great pity that this treatment is not evidence based and does not challenge her at all, so the net effect is that Mother is no further forward with any form of treatment, but appears to be reinforcing her views by getting professionals on-side.

Mother’s actions since the December hearing, it should be recorded, have been to try and shore up her position that the allegations against Father were true. She has repeated them fully to her psychotherapist, who wrote a lengthy letter to the court on her behalf. A mental health professional contacted Children’s Services on her behalf in connection with the allegations. Her vicar has become involved in the case, getting up a petition with over 100 signatures from churchgoers for the return of Child to Mother’s care, and attending contact uninvited. And finally Mother has re-asserted the truth of the allegations in a document written by her for a contact planning meeting in January 2014 after a difficult contact session.

[The Court doesn’t seem to have picked up on the point that it is unlawful for mother or others to identify that her child is the subject of ongoing Court proceedings, which someone must have done in order to sign the petition]

These cases are all really hard. For a father, to be accused of sexually harming your child when you have not done it must be one of the worst things imaginable and if the Court decide having tested the evidence that you are innocent you think that this will be an end of the nightmare, but it isn’t. And looking at it from the mother’s perspective, either the allegations are true and the Judge has got it wrong (which is not right legally, but is a human reaction) or by that point your relationship with the father is so corrosive and damaged that you have convinced yourself that he IS a risk and yet nobody will listen to you.

Looking at it from a purely forensic and legal perspective, the only thing for a mother to do in this situation is to say that the allegations were made in good faith and to protect the child, but that she now accepts the judgment.

But human beings don’t make decisions based on pure forensic legal considerations but on emotions and feelings.

I am reminded of the Blackadder lines

It is so often the way, sir, too late one thinks of what one should have said.

Sir Thomas More, for instance, burned alive for refusing to recant his Catholicism, must have been kicking himself, as the flames licked higher, that it never occurred to him to say, “I recant my Catholicism”

In a case like Hampshire, where mother is given the chance to recant her allegations and not only doesn’t do so, but proclaims them anew, it is not a very difficult decision for a Court to make.

On the ground, for a family and a child, they are some of the hardest things of all.

The mother and her side of the family are never going to accept that the child should be with father, they are always going to feel that mother has been punished for speaking out and saying the truth and that the child is in the most dangerous placement possible. What does that do to their relationship with the child? What are those contact sessions like? How will difficult questions raised by the child be answered?

I’ve got very little sympathy for mothers who perniciously fabricate such allegations about fathers (the option 4 in my original list), but what about those mothers where the allegations were made in good faith and they can’t move on from “it is my child, I KNOW in my heart that this really happened”? (options 2 and 3)

Legally and forensically it is easy – recant your Catholicism and accept the judgment. I can’t help but have some sympathy for mothers in that position though. What, they might say, if the Judge has got this wrong? People make mistakes – Courts get things wrong.

If you are in that position, how easy is it to just say “I give up, okay, it never happened”, when every fibre of your being says that it did?

What, they might say, if the Judge thinks that on the balance of probabilities, it is 55% likely that the allegations aren’t true. For the law, that proves it. But for me as a mother, what about that 45% chance? How could I, as a mother, be happy that there was a 45% chance that my child has been abused?

[None of that counts in legal and forensic terms – once the Judge has made a decision, you either accept it, or you successfully appeal it. The Court’s decision means that all of that doubt and uncertainty is removed and that what the Court say happened IS what happened]

We are hearing more and more from the Courts that it is not the job of the Court to fix people, to make them better, to solve their problems.

(for example T v S http://www.bailii.org/ew/cases/EWHC/Fam/2013/2521.html

The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father’s complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father’s ambition to achieve.

And Re K http://www.bailii.org/ew/cases/EWCA/Civ/2014/1195.html

“In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot – its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be ‘allocated’ to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court’s decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies.” )

And to an extent, that is right. The Court don’t have a magic wand to make things better, they don’t have resources to fix people.

Indupitably, however, there are people who come out of Court proceedings substantially more broken than when they went in. I don’t have an answer, and I suspect we’re less likely to get one that we were pre Austerity.

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Posted in case law, children and families act 2014, emotional harm, experts, fact finding, private law and tagged allegations in private law, allegations which are not proved, change of residence as a result of false allegations, hampshire v a mother and others 2014. Bookmark the permalink.

Research and stats round-up

Posted on October 1, 2014 by suesspiciousminds

A few important reports on statistics / research documents have come out in the last two weeks. I’m afraid that I don’t have enough time to write about each in depth, but I’ll give you the headlines and a link to each and if that whets your appetite, you can read the whole thing.
1. Serious case reviews

Ofsted have published statistics showing that the number of Serious Case Reviews have dramatically increased

http://www.ofsted.gov.uk/resources/serious-incident-notifications-official-statistics-release

A 53% increase on Serious Case Reviews since 2012.

You might think, as I immediately did – is this evidence that the new methods of working aren’t working and that children are paying a heavy price?

It may be much more prosaic than that. The real chance in Serious Case Review policy is that they went from being internal documents to published documents in 2011, and the numbers went down as a result. Public bodies that had been using them to learn lessons and discuss failings were less keen on doing so in published documents – the “washing your dirty linen in public” effect. And then last year as a result of that decline an independent board was set up to scrutinise decisions as to whether or not to hold a Serious Case Review. So the dramatic rise is just that independent board restoring normality.

However, the number of referrals of “serious incidents” to Ofsted did go up. “Serious incidents” can cover incidents that would warrant a Serious Case Review or that are likely to attract media attention. So a greater media interest in family justice might account for the increase.
2. Ministry of Justice Statistics show a 19% reduction in family cases

Click to access court-statistics-quarterly-april-to-june-2014.pdf

Private law cases dropped by 41% from the same quarter last year, as those cases that had got in just before LASPO have now all just about ended.

The MOJ say that numbers of public law cases has been fairly stable since 2011 (so the figures earlier this year showing a decline was really just the effect of everyone pausing in new cases to make sense of the new PLO requirements rather than any real downturn in demand)

What is interesting is that despite the huge Government push on mediation being the way forward, the number of mediations in the last year decreased by 50% from the level that it was when parents could go and see a lawyer for free advice who would explain the benefits of mediation to them. That’s pretty damning, that a compulsory mediation service has lower take up than when it was voluntary.

http://www.familylaw.co.uk/news_and_comment/new-moj-laa-data-low-income-families-turn-backs-on-court-mediation-falls-50-compared-to-pre-laspo-times
3. CAFCASS research on care proceedings
This is an annual follow-up since the death of Peter Connolly, in which Guardians in public law cases are surveyed after the conclusion of the care proceedings and asked some general questions about whether they feel the LA was right to bring the proceedings, the quality of the evidence and whether the proceedings were brought too soon, too late or about right.

Click to access three_weeks_in_november_five_years_on.pdf

The headline from that is that “social workers are taking the right actions to keep children safe”

And that in 84% of proceedings, the Guardian felt that there had been no other choice than to issue proceedings. [Of course, the other way of looking at that is that 16% of proceedings are being issued when they didn’t need to be]

It probably isn’t the most impartial measure either – although Guardians are independent of social workers, the ethos of CAFCASS has been fairly obviously “safeguarding” as a priority over family preservation for a few years now.

If you were to ask parents whether the case should have been brought to Court I suspect 84% or higher would say no. So it rather depends on who you are asking.

The really interesting research would be if you could get Judges to do this survey, keeping it all anonymised.

Cafcass note that the proportion of Guardians feeling that cases were being issued too late rose from 26% to 39% – they fairly note that this could be that delays are getting worse, or that cases have moved to pre-proceedings or that the greater focus on timescales and targets have made Guardians more sensitised to the issue and more critical of delays that would have been tolerable a year ago.

4. The Children’s Rights Commissioner says that legal aid cuts have detrimentally affected children
To which the MoJ have replied “Well it isn’t meant to”

So that’s all fine then.
“Behind the evidence in our research are countless heartrending stories of children and vulnerable young adults whose lives have been seriously affected by their inability to access legal representation,” Atkinson said. “This means, in effect, that they cannot seek, let alone receive, justice. We should not expect children and young adults to face the complexities of the legal system on their own. These systems are daunting enough for adults, let alone vulnerable children and young people.

“The system is so difficult to navigate that it leads to people having no legal representation. That in turn can prevent decision-makers making decisions properly, as well as stopping individuals obtaining the justice they need … Short-term savings to one part of the legal system – legal aid – are simply shifting costs to another, because judges direct that representation has to be funded.”

http://www.childrenscommissioner.gov.uk/content/publications/content_871
5. NSPCC research suggests that spending a bit more on family support where children are rehabilitated would be far cheaper than our present arrangement

Click to access reunification-costs-report_wdf104058.pdf

Over 10,000 children are returned home from care every year, however it is estimated that 30-60% of these reunifications fail, meaning children are then moved back to care, at great human and financial cost.

This process costs an estimated £300m, according to a study by the Centre for Child and Family Research at Loughborough University, commissioned by the NSPCC. The costs include social work costs, legal costs, decision-making and placement costs.

However, the researchers found that a £56m investment in providing effective support for families when a child returns from care could reduce the number of reunification breakdowns.
This is an interesting piece of research, and I know that sign up for the pilot scheme was very fast, with it being oversubscribed. If a new approach for support for children being returned home meant that more of them could stay there.

Quick caveat – I think some of the underlying maths is iffy. These are social scientists, not acountants. For example, there are some underlying assumptions that are weak

(i) That it covers s20 not just care
(ii) That a child who comes back into care will remain in care and the costs can be worked out on that basis (whereas some children in s20 might come back into care for a short period)
(iii) That it is fair to work into the costings of the child coming back into care that some children are in residential care (the most expensive type and frankly the ones who are in residential care are likely to be the ones least likely to get turned into successful permanent rehabs)
(iv) That for some reason the estimated legal costs of proceedings is calculated as being less than just the Court issue fee. If a Local Authority can manage to run the whole care proceedings for less than it costs to get the Court to start them off, that’s some wonder economics there
(v) That the figure for failed rehabs is 47%, which is something of a finger in the air taking an average of two other studies (the headline numbers in those studies look extreme, but if a child is in care, goes home, and comes back into care, the “going back into care” might include a short respite period rather than permanent placement away from the family)

But my criticisms are really that the figures are slightly cooked to make the scheme seem even more desirable – I don’t think they needed to do it, the case for better support services is well made out in the body of the report.

This bit some people might find useful – we hear so much about “a low level of support” or “this family need a high level of support” – what does it mean in practice?

The report shows the real actual numbers

This comprises 6 months at a high level (8 hours 15 minutes social worker time plus 50 minutes team manager per month);

3 months at medium level (5 hours and 45 minutes social worker time plus 50 minutes team manager per month);

and 3 months at a low level (2 hours and 35 minutes social worker time plus 50 minutes team manager per month). These activity figures are taken from Holmes and McDermid (2012).
From that – high level of support is just over 2 hours a week of social work time. Medium level is about 1 ½ hours a week of social work time and low level is about 40 minutes a week.

Anything more than that would be accurately described as ‘exceptionally high levels of support’ although when you see the numbers it might not seem to be.

I absolutely welcome anyone trying to find out what the best way to make rehabilitation of children back home work better, and credit to the NSPCC for funding this sort of research. I hope that it makes a difference and that if so it is rolled out nationally.

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Posted in cafcass, children and families act 2014, research and tagged cafcass study, nspcc research, research, statistics. Bookmark the permalink.

Re-branding Child Arrangement Orders – draft MoJ press release

Posted on September 19, 2014 by suesspiciousminds

Now look here, you silly plebs. When we changed the name of Custody and Access to Residence and Contact, you were all supposed to realise that these new fluffier terms meant that it wasn’t worth fighting about who got which order and that you’d just agree very quickly who was going to get what and save money.

Well, that didn’t work, so then we came up with the super wheeze of calling both orders by the same name – Child Arrangement Orders.

You people just don’t seem to get it. Once the order has a neutral name, you’re just supposed to agree to have one and go away and stop bothering our Judges and trying to get in to public counters to talk to Court staff. The rebranding to Child Arrangement Orders hasn’t worked either. It seems that people still want to fight about where the child will live, and how much time the child will spend time with you. Selfish, that’s what we at the MOJ call it.

We now realise where we went wrong. It was in calling the orders the same thing to both parents, whether you got the order or the other parent got it. Of course that ends up making one person feel like a winner and one person feel like a loser. We have now fixed that.

In our example orders, imagine that the children live with / are Resident with / are in Custody of Robin, and spend time with / have contact with / has access with Evelyn.

Here is what Robin’s order looks like

1. The children will Get to Spend Nearly all their time with you Robin! They will grow up loving you best and you are thus, the winner!

2. The children will Begrudgingly Have a Boring Time with Evelyn every other weekend. In the meantime, you get every other weekend to Find Yourself! Why not learn to tango, play the guitar, read Dr Zhivago in the original Russian, get twatted with your mates who all hated Evelyn anyway. You are thus, the winner!

And here is what Evelyn’s order looks like

1. Robin will be the N0-Fun Parent. Robin will be responsible for making packed lunches, nagging, making the children tidy their room, dealing with 90 per cent of “Are we there yet?” queries and late night vomiting, and the ironing. Oh, so much ironing. Robin will find it hard to meet new people and friends because they are to have the life of Drudge. Did we mention the ironing? You are thus, the winner!

2. The children will have SUPER-FUN time with you, every other weekend. The SUPER-FUN time will be directly compared by the children to the life of drudge and nagging with Robin. You are thus, the winner!

Neither parent will ever, ever ever see the other parents order, and this will be all that it takes to make each of them leave court knowing that they, and only they, are the winner!

We at the Ministry of Justice are pretty sure that this will work. In order to further distract parents from the reality of how awful it is to be parcelling up your children and bitterly quarelling with someone you used to love but no loathe and knowing that all the while you are screwing your children up for decades to come, the orders will now be printed on shiny silver paper. Oooh, shiny!

[Suesspicious minds was so distracted by the new shiny silver paper orders “Is that tinfoil?” that he wrote Child Assessment Orders instead of Child Arrangement Orders. Every single bloody time. What a divvy]

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Posted in children and families act 2014, private law. Bookmark the permalink.

Making eye to eye contact (post adoption contact applications, some practical queries)

Posted on September 16, 2014 by suesspiciousminds

I’ve previously written about the relatively new provisions of the Children and Families Act 2014 that allow a birth parent to apply for direct contact even years after the adoption order was made.

Applying for contact AFTER a child is adopted

I’m grateful to regular reader and commenter, Jerry Lonsdale, for posing me some questions that I didn’t know the answers to, and thus for making me go and find unexpected answers.

The provisions are set out in a new clause s51A of the Adoption and Children Act 2002

In order to make the application, a parent would need to obtain leave of the Court, and the Act sets out the things that the Court would need to consider.
S51 (5)In deciding whether to grant leave under subsection (4)(c), the court must consider— .
(a)any risk there might be of the proposed application disrupting the child’s life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act), .
(b)the applicant’s connection with the child, and .
(c)any representations made to the court by— .
(i)the child, or .
(ii)a person who has applied for the adoption order or in whose favour the adoption order is or has been made.
[It might have been helpful, given the wrangle that has previously taken place about whether leave to oppose adoption or leave to revoke a Placement order applications are applications to which the welfare paramountcy test applies for Parliament to have made that explicit. I think, though I would not put money on it, that when deciding the application for LEAVE, that the welfare of the child is a paramount consideration.]
We are probably getting the first of these applications made at present (and I’m aware that there is one such case in the High Court where the practical issues are becoming exposed)
In terms of practical issues, let’s look at them in turn – this has been a valuable exercise, because one element that looked very problematic when I first considered it has actually resolved on very close inspection. It might save someone else the detective legwork in the future.
1. How does the birth parent serve the adopters?

The birth parent won’t know the adopters address and nobody is going to tell them it. The Court MIGHT know it, if they were the Court who dealt with the adoption and they still have the file; assuming that the adopters have not moved since the adoption order was made. The other option might be for the Court to ask the Local Authority to serve the adopters – assuming that the Local Authority are willing to get involved and that the Local Authority have an address for the adopters. (Adopters aren’t obliged to keep a Local Authority informed of any change of address – they MIGHT, if they have a good relationship with their support worker or if they are receiving financial support)

You can’t go ahead with the application if the adopters aren’t served, because (a) that’s going to result in article 6 breach to the adopters and (b) The Court is obliged to consider the views of the adopters.
So not having a solid practical solution to that aspect is somewhat troubling.

If the adopters happen to have moved overseas since the adoption order was made, it is not at all clear to me that the provision would have any force at all.
2. Who is a party to the application for leave?
Well, the birth parent making the application is a party. The adopters would be a party, as respondents. And erm, that’s it.

The Local Authority are not a party to proceedings. They no longer hold any order in relation to the child, since the making of the Adoption Order ends their Care Order.

These applications are NOT specified proceedings for the purposes of section 41 (6) of the Children Act 1989 , and are thus not proceedings for which a Guardian is automatically appointed.
As we already established that applications under s51A don’t attract public funding (unless the applicant or respondent can convince the Legal Aid agency to give them ‘exceptional’ funding under s10 LASPO, which is as likely as Alex Salmond inviting David Cameron to rule Scotland by his side at the end of the month – perhaps wearing a Darth Vader costume) both the birth parent and the adopter will probably be litigants in person.

As such, neither of them will really fully grasp the test and the nuances and if we ever get any case law on it, won’t know it. Not their fault, it doesn’t mean that they aren’t bright or articulate, just that this whole thing is pretty impenetrable AND brand-new.

Probably neither of them will have a full set of the previous adoption papers and care proceedings – the adopters certainly won’t. The parents might, if they kept hold of them for a few years and ever had a complete set anyway.

So a Judge will be faced with two litigants in person (and a set of litigants who almost certainly won’t want to come into contact with each other), who don’t have the past papers and won’t know the law and process.
2(a) Options to get other people involved

The Court could invite the Local Authority to become a party. That would be an invitation – the LA can’t be forced to become a party. One would hope that the LA take up that invitation, but they might not. They might consider that the adoption was years ago and that everyone who knew the case is long gone, they might think that the adopters are from another part of the country miles away and that it would be better for THAT LA to be involved rather than them, the birth parents and adopters might not be living in that particular Local Authority by the time the application gets made, they might just be short-staffed and poorly funded or bloody minded.

If the Court invites the LA and they decline, I had initially thought that this was the end of it. It is not!

Rule 14.3 Family Procedure Rules 2010 (the section relating to any application under the Adoption and Children Act 2002, which this would be)

14 (3) The court may at any time direct that—
(a) any other person or body be made a respondent to proceedings; or
(b) a party be removed.

The Court therefore has the power to MAKE a Local Authority be a Respondent to such an application. And once they are a Respondent, the Court can make them file documents, skeletons, statements etc.

The application isn’t specified proceedings, but the Court can still appoint a Guardian, by appointing the child as a party under rule 14.2 of the Family Procedure Rules 2010 and then appointing a Guardian to represent the child.
(2) The court may at any time direct that a child, who is not already a respondent to proceedings,
be made a respondent to proceedings where—
(a) the child—
(i) wishes to make an application; or
(ii) has evidence to give to the court or a legal submission to make which has not been
given or made by any other party; or
(b) there are other special circumstances.

[You can’t do it under Rule 16.4, because that expressly excludes doing so in an application under the Adoption and Children Act 2002, so rule 14.2 is the solution]
You can of course still get the difficult situation where Local Authority A dealt with the care proceedings, the child is placed with adopters in Local Authority area B, and by the time of the adoption the birth parents are living in Local Authority area C. Which Local Authority does the Court make a Respondent? Which of the three areas provides a Guardian?

3. How does the Court make the enquiries about the risk of the application being disruptive / the benefits of it?

Well, it becomes substantially easier if the LA and Guardian are drawn into the mix. The Court can direct that those agencies carry out an assessment and provide a report.

If they are not made parties, the obvious solution that occurred to me was that they be directed prepare a section 7 report, but there is no power to do that on a s51A application for contact.

Section 7 of the Children Act 1989 (the power for the Court to direct that the Local Authority or CAFCASS provide a report to the Court advising on contact) applies to applications made under the Children Act 1989, and s51A applications aren’t.
4. What is the test going to be ?
Historically, the senior Courts have always made heavy weather of “leave” applications – they have always wanted to add gloss to the statute – often so much gloss that the test that one ends up with bears little relationship to the statute itself. You only have to look at the variety of judicial shorthand guidance on “leave to be joined as a party” in care proceedings – we have had everything from ‘arguable case’ to ‘strong arguable case’ to ‘strong prospect of success’ to ‘not vexatious, frivolous or fanciful’ and we now have the Court of Appeal guidance that one has to frankly forget all of the previous shorthand and guidance and just go back to what it says in the statute as factors to be considered and add in the human rights principles of right to family life, proportionality and right to fair trial.

But we do have slightly different tests for “leave to be joined as a party” (which is the “it’s the Act, stupid” test), “leave to revoke a placement order” (which is still officially Warwickshire, though everyone really thinks it ought to be identical to B-S) and “leave to oppose adoption” (which is B-S)

Which of those tests, if any, is going to apply to these applications?

Does the historical law on making a contact order post adoption still apply? (in essence don’t make a contact order if the adopters are agreeing to the contact and don’t make a contact order in the teeth of opposition from the adopters – leaving only a tiny patch of possible contact orders in wholly exceptional cases)

Is there a presumption that contact is good? Or a presumption that the status quo should prevail? Are either rebuttable presumptions? Or is it a completely blank sheet of paper?

Who the heck knows?

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Posted in adoption, children and families act 2014 and tagged applying for leave for contact application, leave application, post-adoption contact, practical issues with section 51A, section 51A. Bookmark the permalink.

Being late to the party (turns out Auntie Beryl was Grandma Beryl…)

Posted on July 16, 2014 by suesspiciousminds

KS v Neath Port Talbot 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/941.html

This was an appeal by the grandmother who was refused her application to be joined as a party to care proceedings, which resulted in Placement Orders. She put herself forward in a formal application five days before the final hearing.

The Judge arrived at a sort of half-way house, refusing party status for the grandmother, but allowing her to be in Court, to give evidence and to ask the father’s representatives to put questions on her behalf. This unusual position was not helped by the Judge believing when judgment was delivered that the grandmother’s primary application had been dismissed by the Judge on day one of the final hearing (it hadn’t, it had been adjourned for decision until the end of the case)

Some five days before, on 9 October 2013, the child’s paternal grandmother had made a formal application to be made a party to the proceedings and for an expert assessment concerning her capability to care for the child. The application was adjourned at the beginning of the hearing and refused at the end. The effect of the adjournment was, however, to refuse the grandmother party status for the hearing that was taking place. Despite this, the judge permitted the grandmother to remain in court during the hearing and to give oral evidence. He records in his judgment that the grandmother:

“… opposes the applications and has played a part in these proceedings in as much as she has given evidence and has put herself forward as a potential carer for her grandchild”

There was a real issue before this court about what the judge intended to decide by his case management ruling. Although it is clear from the words he used that he adjourned the grandmother’s application until the end of the hearing on the merits, when he refused it, he later recollected (erroneously) that he had refused her application at the beginning of the hearing. Furthermore, although he failed to grant to the grandmother some important due process protections that a party would have, in particular notice of the issues in the case and knowledge of the evidence filed relating to those issues, he afforded the grandmother a partial opportunity to participate in a hearing which decided those issues.

The trial judge’s determination of the grandmother’s case was fairly short, and viewed criticially by the Court of Appeal

The terms in which the judge dealt with the grandmother’s application at the beginning of the hearing are as follows:

“This is an application for leave to make an application under section 8 of the Children Act. I bear in mind that this is a very late application and I bear in mind the Family Proceedings (sic) Rules and the overriding principle that I have just referred to. Although this is a late application, it has the potential for disruption not only of these proceedings but the interests of this child.

I am not going to shut the grandmother out of these proceedings at this stage. She can stay and hear the evidence, she can stay during all the proceedings, she can find her seat comfortably with other parties and she will be able to give evidence and through the solicitor for the father she can cross examine the author of the assessment that was made of her which was negative. I, therefore, adjourn her application to a stage in the proceedings after all the evidence has been completed. I do so in balancing the fairness to all the parties here and to the child.

There will be no ostensible delay of these proceedings by doing this, I allow her interests at least to be considered and for her to hear all the evidence as it potentially may interest the third party.”

At the end of the hearing the judge refused the application for five reasons that involved no analysis of the evidence, no analysis of the content of the assessment of the grandmother or the potential merits of her case, as follows:

i) the late nature of the application and the delay that an additional expert would occasion;

ii) the nature of the grandmother’s proposed application, namely for a residence order which the judge described as lacking in detail;

iii) the limited connection with the child: the judge accepted that there was an emotional attachment but erroneously described the continuous and significant contact arrangements as being “some ad hoc inter-familial arrangement for contact”;

iv) the real disruption that the application would cause to decision making about the child’s immediate future; and

v) the fact that the grandmother did “not fall within the remit of the local authority’s plans”.

As to the merits of the grandmother’s case, the judge was brief. The analysis in his full judgment was limited to the following words:

“The original assessment of the grandmother on 12th July of 2012 was negative. There is scope to believe that things have not so fundamentally changed that that report should stand to be considered as being valid. Any contribution as sought by the grandmother would require considerable analysis of the family dynamics, including of course an exploration of the father’s upbringing which itself has been the subject of various explanations, and also the management of contact. That was the view of the Guardian and I accept it. There is no merit in the application for the grandmother to care for the child. I appreciate that she may well have a kind heart and show commendable maturity as a grandparent herself in conceding that the time is now right for a decision to be made in respect of [the child].”

On the other side of the coin was the grandmother’s case, and the Court of Appeal felt that she had a better case than the Judge had recognised

The grandmother’s case was that she has a meaningful connection with the child who had regular contact including staying contact with her. That contact had existed before the child’s placement with the great grandparents, had continued after that placement had ended and was still taking place during the proceedings on a twice weekly basis. In addition, the July 2012 assessment acknowledged that the paternal grandmother and her husband displayed genuine emotion for and were clearly concerned about the child’s future. They were assessed as being fully aware of the local authority’s concerns about the parents and the child’s care needs. There was a significant attachment between the child and her grandparents that would be severed by the adoptive plan. By the time of the final hearing, the child’s parents supported the grandmother’s application.

The assessment also described the manifestly good care that was provided by the grandparents for a 14 year old boy and a 12 year old girl within what was evidently a long term stable relationship. There were no concerns about their parenting abilities in respect of these children and there had been no involvement of children’s services.

The local authority response to this court about the merits of the grandmother’s case was that the positives in the assessment were outweighed by the negatives which included the paternal grandmother’s partner having significant mobility problems such that he might not be able to assist with his granddaughter’s care. There were also fears about the impact the parents might have in undermining a placement with the grandparents, the appropriateness of the grandparents’ accommodation and the grandparents’ commitment to the children already cared for by them and whether that would be compromised by another child in the household.

In my judgment, the analysis of the negatives in the local authority’s evidence and by the guardian did not exclude the grandparents as a realistic option. To put it another way, the grandparents’ prima facie case on paper was stronger than that of the local authority relating to them. It is difficult to conclude other than that the grandparents’ case was arguable on any basis. It went to the critical proportionality evaluation of whether ‘nothing else would do’ than adoption. The grandmother’s application accordingly demanded rigorous scrutiny of the factors set out in section 10(9) of the Children Act 1989 in the context of the reasons for the late application.

Decision

The paternal grandmother submits and I agree that the case management decision that the judge made was plainly wrong because it was procedurally unfair. If, by his case management decision, it was the judge’s intention to exclude the grandparents from the care of the child, then he did not have regard to evidence relating to the section 10(9) factors or to the potential merits of her case which he would have found in the content of the assessment to which I have referred. His reasons lacked sufficient or any analysis. Case management decisions that have the character of deciding a substantive issue must be treated with particular care: hence the nature and extent of the enquiry that is made necessary by section 10(9) of the Act and its associated case law.

The purpose of section 10(9) of the 1989 Act and the case law that supports it is defeated if there is no analysis of the benefits and detriments inherent in the application and the arguability of the case. The section provides a framework for decisions of this kind to be made so that there is an appropriate balance between case management principles and the substantive issues in the proceedings. Furthermore, the lack of attention to detail and in particular the lack of analysis of what had been happening during the proceedings in particular as between the local authority and the grandmother and the child, including the timetable for the child and for the proceedings, deprived the decision of the character of individual and collective proportionality that application of the overriding objective would have provided. In simple terms, the decision was too superficial and un-reasoned to stand scrutiny.

If it was the judge’s intention to consider or re-consider the grandmother’s case at the end of the evidence, in what would then have been an holistic overview of the options to which a welfare analysis and proportionality evaluation were applied, then he failed to put in place any procedural protections for a person whose case was distinct from the other parties. In particular, his decision at the beginning of the hearing had the effect of refusing to make the grandmother a party, thereby denying her access to the documents so that she could challenge matters relating to her own case and condemned her to giving evidence without knowledge of the relevant evidence in the case. The essential due process protections of notice of the issues and an opportunity to challenge evidence relating to those issues was missing and in my judgment that was also procedurally unfair.

By reason of the manner in which the case management decision was made, the evidence relating to whether grandmother was a realistic option was not identified and tested. It was neither tested by reference to applicable case management principles nor substantively as one of the options in the case about which the court was hearing evidence with the usual due process protections. The judge allowed the issues raised by the grandmother to fall between two stools. That was plainly wrong and as a consequence the process was procedurally unfair.

At the end of the hearing, the case management decision made by the judge was re-iterated as a substantive decision to exclude the grandparents from the care of their granddaughter. Whether or not the grandmother as a non-party to that decision has the locus to challenge that aspect of the case, the mother does. She submits that as an exercise of value judgment it was wrong and in any event the judge failed to conduct a non linear, holistic welfare analysis and proportionality evaluation of all of the care and placement options and that was an error of law. The judge did not reason why the grandparents were to be excluded, there is no comparative welfare analysis of the benefits and detriments of each option and a proportionality evaluation is entirely missing from the judgment. Further and better reasons of the judgment were requested but they do not assist in any of these respects. That has the effect that there is no consideration in judgment of the effect on the child of breaking family ties, in particular her attachment to her grandparents and whether nothing else would do other than adoption.

In summary, the grandmother supported by the mother submit that the judge failed to address that which is required by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 in analysing whether ‘nothing else will do’ and the subsequent Court of Appeal cases of Re P (A Child) (Care and Placement: Evidential Basis of Local Authority Case) [2013] EWCA Civ 963, Re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 and Re B-S (Children) [2013] EWCA Civ 1146. I agree. There was no overt analysis of the child’s welfare throughout her life nor the likely effect on her of having ceased to be a member of her original family in accordance with section 1(2) and 1(4)(c) of the 2002 Act. The distinctions between the factors in the welfare checklists in the 1989 Act and the 2002 Act were not explored. The essence of the recent case law and of the statutory tests was not sufficiently demonstrated.

The local authority concede that the judge’s approach to the welfare analysis and proportionality evaluation was not in accordance with the authorities. Their case rests on the ability to exclude the grandmother from that exercise. That would have involved an analysis by the judge of the timetable for the child and the timetable for the proceedings as part of the overriding objective, the section 10(9) factors and the arguability of the grandmother’s case. That analysis was missing with the consequence that neither the grandmother’s case nor the local authority’s case was properly considered during case management and the grandmother’s case was not considered on the merits. It is fortunate that the child’s interests can be protected by an expedited re-hearing before the Designated Family Judge for Swansea.

This does seem to be the right decision for the child, but it raises real questions about the 26 week timetable. It has been a long-standing question as to what the Court of Appeal would do with a Judge that refused in an adoption case to allow a delay to assess a relative who came forward last minute, and now we know. If the Judge is robust and looking at the new wording of the Act and the principles of the Act in relation to delay and achieving finality, they run the risk of being successfully appealed.

There’s another Court of Appeal decision forthcoming which does much the same in relation to giving a parent more time to demonstrate the ability to provide good enough care (even when the proceedings had reached 64 weeks http://www.bailii.org/ew/cases/EWCA/Civ/2014/991.html ), so the message here is somewhat muddled.

In speeches, it is 26 weeks can happen, it must happen, it will happen.

In the cases that hit the Court of Appeal it seems to me more – 26 weeks can happen, it must happen, it will happen – but to those other cases, not the ones we’re looking at.

So can a Judge who delivers that sort of robust judgment, refusing delay, be confident that the Court of Appeal will back them? That’s exactly what happened with the ‘robust case management’ that was supposed to be the underpinning of the Protocol and PLO Mark One. If the Court of Appeal aren’t really behind the 26 weeks, and the appeal process takes forever (as presently), then won’ t Judges cut out the middle man, save time and just allow the adjournment requested knowing that the Court of Appeal will probably grant it eventually anyway?

*To be scrupulously fair, this Court of Appeal decision, though only now released, was decided in March BEFORE the Children and Families Act 2014 came into force. But hardly in ignorance of the culture, and the main judgment was delivered by Ryder LJ, a major architect of the revised PLO.

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Posted in adoption, case law, children and families act 2014 and tagged 26 weeks, adoption, auntie beryl, delay v fairness, ks v Neath Port Talbot 2014, relative, relatives coming forward late in care proceedings. Bookmark the permalink.

“Welfare of the child : Parental involvement”

Posted on April 28, 2014 by suesspiciousminds

There was quite a lot of debate about the wording of the new section 11 of the Children and Families Act 2014.

You may recall, in the distant mists of time, that the Family Justice Review were asked to consider whether we should incorporate into English and Welsh law the sort of provision that Australia introduced, of there being a starting point in law that it is good for children to spend time with both parents.

The Family Justice Review decided not to, but the Government decided that it did want to consult on whether something along those lines was desirable.

I wrote about the consultation nearly two years ago, here

https://suesspiciousminds.com/2012/06/13/co-op-good-with-kids/

There were four options consulted on (none of them being the presumption of equal time or shared time that the media reported on, and that the fathers’ rights lobby were asking for. I’ve tried in this article to not split it on pure gender lines – I think that all parents who don’t live with their children would like the Court to have in mind that spending a lot of time with both parents is better for a child than artificially restricting one parent’s time with their child)

Option 1 requires the court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests
Option 2 would require the courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents
Option 3 has the effect of a presumption by providing that the court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents
Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.

The Government decided to go with option 1, but this got diluted further in the parliamentary process, until we ended up with this

Children and Families Act 2014

Section 11Welfare of the child: parental involvement

(1)Section 1 of the Children Act 1989 (welfare of the child) is amended as follows.

(2)After subsection (2) insert—

“(2A)A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

(3)After subsection (5) insert—

“(6)In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

(7)The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”

[If you want a quick explanation – there’s a presumption that it is good for a child to have involvement with both parents (unless it would cause harm or risk of harm to the child), but that involvement can be ‘of some kind, direct or indirect, but not any particular division of a child’s time’.

It is probably worse for non-resident parents than the current Act, which tended to be interpreted that direct contact for both parents is a good thing for the child, if it can be done safely]

I’m grateful to Noel Arnold for alerting me and others to the fact that these provisions are not yet in force, and indeed, aren’t in any of the commencement orders (that’s the thing that turns a part of the Act from words into actual law to be followed)

http://www.legislation.gov.uk/all?title=children%20and%20families%20act%202014

Those commencement orders roll out various parts of the Children and Families Act 2014 at various stages this year – 1^st April, 22^nd April, 13^th May, 25^th July, 1^st September.

Clause 11 doesn’t appear in any of those, and the suspicion therefore is that it won’t be rolled out this year (My own suspicion is that it may not be rolled out at all, as happened with the “no fault divorce” provisions enacted in 1996)

It does appear a little odd to me that this fairly anodyne provision can’t be rolled out at the same time as the change of Residence and Contact to “Child Arrangements Orders” (Translation for Eastenders writing staff “They’ve changed Custody and Access to Child Arrangements Orders” )

I’m not sure what else would need to be done to make those provisions ready to go, and it suggests to me a measure of disquiet that the provisions are not really useful to anyone and would do more harm than good if released into the wild.

There’s a risk, in fact, that for a parent whose contact would be safe, but the parent who lives with a child is hostile to anything more than a birthday and christmas card, the s11 change might make this something that the Court could more easily countenance than the existing position that there ought to be direct contact. There’s statutory sanction for the fact that involvement can include ‘indirect’ contact.

They also seem to set up a situation in which parental responsibility should not be given to a parent (really only a father, since mothers get it automatically) if there’s a risk of harm. That risk of harm isn’t then balanced against the risk of harm if it were not done, or against the possible benefits to the child of doing so. Or if there’s a risk of harm flowing from the mother towards the child as well as from the father towards the child, so that there might be harm to the child either way.

Or indeed that the risk that would warrant not making a parental responsibility order or a Child Arrangement Order that provides for contact flows from that person at all. For example, if a mother wrongly believed that a father was a paedophile and the Court found that he wasn’t, but that having contact would cause the mother emotional distress and anxiety that would impact adversely on the child, the father’s request for contact could be classified as one that puts the child at risk, even though he has done nothing wrong.

There must be a degree of doubt whether rolling out a revised section 1 (via giving s11 Children and Families Act a commencement date) might undermine the existing body of caselaw which was determined under the current s1

For example,

“The Courts recognise the critical importance of the role of both parents in the lives of their children. The courts are not anti-father and pro-mother or vice versa… unless there are cogent reasons against it, the children of separated parents are entitled to know and have the love and society of both their parents. In particular the courts recognise the vital importance of the role of non-resident fathers in the lives of their children and only make orders terminating contact when there is no alternative”

Re O (A child :Contact :Withdrawal of Application) 2003 1 FLR 1258

“It is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living”

Re P (Contact: Supervision) 1996 2 FLR 314

“No parent is perfect, but “good enough parents” should have a relationship with their children for their own benefit and even more in the best interests of the children. It is, therefore, most important that the attempt to promote contact between a child and the non-resident parent should not be abandoned until it is clear that the child will not benefit from continuing the attempt”

Re S (Contact: Promoting Relationship with Absent Parent) 2004 1 FRL 1279

“Contact between parent and child is a fundamental element of family life and was almost always in the interest of the child… there is a positive obligation on the state and therefore upon the judge, to take measures to maintain or to restore contact”

Re C (A child : suspension of contact) 2011 2 FLR 912

I would be very reluctant to have any of those vital principles, which were determined under the old s1, weakened or put in doubt by a changed s1 with a slightly different emphasis.

[I am sure that some non-resident parents will feel that these principles didn’t seem to get much of a look-in when their own case was decided before a District Judge, but they are principles that can be relied on and pushed under the Court’s nose at the moment, and they are important ones]

I have to say that I greatly prefer the current section 1 of the Children Act 1989, which is just plain and simple that when deciding anything that affects a child, the Court’s paramount consideration must be the child’s welfare.

If and when s11 comes into force, all we have is an embroidering of that position which if anything makes it less clear and less meaningful. It certainly isn’t a victory for those lobbying for a fairer and more equal treatment for parents who don’t live with their children.

[I have to confess that it has never sat comfortably with me that portions of an Act go through parliamentary scrutiny and royal assent, and in effect get voted on by the House of Commons and the House of Lords and win that democratic approval, but ultimately become law on the decision of a single government minister to push the “Release the Clause” button or not. But here, I’d be happy for the button not to be pushed – I think that the clause makes things worse for non-resident parents, and they really didn’t need the deck stacked against them]

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Posted in children and families act 2014, private law and tagged commencement order, contact, direct contact, indirect contact, is section 11 Child and Families Act in force, new section 1 children act, presumption that parental involvement good for children, section 11 children and families act. Bookmark the permalink.

Bundles

Posted on April 17, 2014 by suesspiciousminds

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

Well, perhaps having hit practitioners with 18 new statutory instruments containing the rules for how things are to be done on Tuesday 22^nd April, many of which we got on Wednesday (two working days before) might not be classed by some churlish curmudgeons as smooth and efficient.

[As you may have picked up over the last two years, I READ. I quite like reading law. I even quite like reading statutory instruments. But I draw the line at reading 18. If even I’m not reading them, I have to ponder “Who is?”]

Perhaps also having changed the rules about bundles from next Tuesday, and doing so two working days before, after most of them would have already been sent out, could have been smoother and more efficient, but you’d be a fool and a communist to say so.

Anyway, here are the President’s new rules about bundles.

http://www.familylaw.co.uk/system/uploads/attachments/0008/5165/FPR_PD_27A__Bundles_.pdf

I think on the whole, I rather prefer Sedley J’s rules

http://heinonline.org/HOL/LandingPage?handle=hein.journals/judire1&div=8&id=&page=

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.
Second Law: Documents shall in no circumstances be paginated continuously.
Third Law: No 2 copies of any bundle shall have the same pagination.
Fourth Law: Every document shall carry at least 3 numbers in different places.
Fifth Law: Any important documents shall be omitted.
Sixth Law: At least 10 per cent of the documents shall appear more than once in the bundle.
Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
Eighth Law: At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in Court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.
Ninth Law: Only one side of any double-sided document shall be reproduced.
Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.
Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the 2 arches do not meet.

In any event, changes are afoot on bundles. People need to be aware that none of the source material will be in a bundle read by the Court UNLESS the Court has specifically directed its insertion. If you want to rely on contact notes, foster care records, police disclosure, medical records, school reports, then you are going to need to apply for them to be added to the bundle – and expect to have to justify exactly why they are proportionate and necessary.

That is going to be particularly important if you have picked up a final hearing brief for which someone else did the IRH – if they got the contact notes in, you’re going to be expected to make some use of them or annoy the Judge who agreed to their insertion, or worse – if counsel at IRH didn’t ask for them and you want them, you’re going to have to make an application. (And those notes won’t be available at a moments notice, so I suspect you will need to put everyone on notice in good time that you intend to do so)

Everyone is to file a position statement, limited to 2 pages, for each hearing. And they are expected to set out the orders they seek both at that hearing and final hearing. (Expect to see a lot of bland “We seek Care / Supervision Orders at final hearing, depending on the outcome of assessments” because anything else from the LA or Guardian is a hostage to fortune / evidence of prejudgment)

Case summaries are limited to 4 pages – bad news for any existing pro-formas in courts around the country which would run much longer than that.

Case summaries for cases done before justices are to be anonymised. (I know, they are sent to the justices along with a bundle of papers that are not anonymised, I have no idea what ill this is intended to remedy or what sense it is intended to make)

4.4 Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents.

You will also note that in cases before the justices, we need to count the pages for them. DJ’s and circuit judges are expected to be able to count for themselves, one surmises.

This bit is going to be loved by Local Authorities who are dealing with the RCJ (thank God, it only applies to the RCJ. The people who wrote this have CLEARLY never tried to have a productive telephone call with the RCJ)

8.2 Upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing the party in the position of applicant shall no later than 3 pm the day before the hearing:

(a) in a case where the hearing is before a judge of the High Court,

telephone the clerk of the judge hearing the case;

(b) in a case where the hearing is before any other judge email the Clerk of the Rules at RCJ.familyhighcourt@hmcts.gsi.gov.uk;

to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organise prompt delivery by the applicant’s solicitor.

The bundles are to be limited to 350 pages or less – unless the Court orders otherwise. In case you were thinking of being a wise-guy loophole sort of person, they have already anticipated that you might just use REALLY HUGE pieces of paper

5.1 Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text.

Okay, so if I can’t use REALLY HUGE pieces of paper, I’ll just write really small. Nope, already got that covered

5.2 All documents in the bundle shall (a) be copied on one side of paper only,unless the court has specifically directed otherwise, and (b) be typed or printed in a font no smaller than 12 point and with 1½ or double spacing.

My last loophole is that there is not a requirement that the bundles be written in English, so I can lodge everything in shorthand and still comply with the practice direction.

[By the way, all of my bundles are currently double-sided, which means that everyone now has to photocopy them all again single-sided and confidentially shred the ones that were perfectly fine yesterday. Approximately 11,000 cases across the country, each shredding 200 pieces of paper purely for the benefit of this practice direction. I hope Sting doesn’t read my blog. Also, 350 pages of single sided paper don’t actually fit into a single lever arch folder… 350 pages of double-sided can be a bit of a tight squeeze]

5.3 The ring binder or lever arch file shall have clearly marked on the front and the spine:

(a) the title and number of the case;

(b) the place where the case has been listed;

(c) the hearing date and time;

(d) if known, the name of the judge hearing the case; and

(e) where in accordance with a direction of the court there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

[As has been pointed out, as nobody any longer knows how to distinguish between two separate buildings – Trumpton Family Proceedings Court and Trumpton County Court, since on Tuesday they are both just Trumpton Family Court, that’s not that easy any more]

All numbering is to be “Arabic”

Well, if that will help…

1 – Wahid
2 – Ithnaan
3 -Thalaatha
4 – Arba’a
5 – Khamsa
6 – Sitta
7 – Sab’a
8 – Thamania
9 – Tiss’a
10 – ‘Ashra

If you need to go up into the hundreds, here’s the link http://blogs.transparent.com/arabic/arabic-numbers-1-100/

And of course, there’s a stick for any breach of the practice direction – you can be kicked out of the list, kept back to the end of the list or be hit for costs.

Penalties for failure to comply with the practice direction

12.1 Failure to comply with any part of this practice direction may result in the judge removing the case from the list or putting the case further back in the list and may also result in a “wasted costs” order or some other adverse costs order.

Remember, this applies from Tuesday next week. Happy Easter.

We ask again…

Has any comparable body of reform ever been introduced so quickly, so smoothly and so effectively? – The President, view 11

To end on a happier note – this being Easter, and it being a piece about bundles AND my blog title being inspired by Dr Seuss – this is an actual genuine US judgment refusing to allow a party to exhibit a hard boiled egg to his statement

http://kevinunderhill.typepad.com/Documents/Court_Orders/Hard_Boiled_Egg.pdf

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Posted in children and families act 2014 and tagged bundles, bundles in care proceedings, case summary in care proceedings, position statement in care proceedings, practice direction 27 D. Bookmark the permalink.

The President’s decision in Re S (26 weeks and extensions) Part 2

Posted on April 17, 2014 by suesspiciousminds

The judgment is on the previous blog (I’m sure it will be on Bailii shortly)

This case really turns on the provisions of the Children and Family Act 2014 that come into force on Tuesday 22nd April. What we have here, somewhat unusually, is a leading Judge giving authority as to the interpretation of an Act which has not yet come into force. Sentence first, verdict later, as it were.

At least it avoids any other Judge giving a judgment on Tuesday or afterwards which doesn’t accord with the President’s view of the test, so we all know where we stand. [In fairness, because the decision that was being sought was to adjourn the case well beyond 22nd April, the future provisions would have kicked in by the time that the case fell to be determined, so it might have been hard to simply ignore them]

On the facts of the particular case, this was about a mother with a history of substance misuse problems, on child number four, with the previous three having been removed. There had been drug tests within the proceedings showing “at worst very low levels of drugs in the mother’s hair”

The proceedings began in October, and we are now April. The mother’s application was for a residential assessment, that would last for a period of six to twelve weeks and if successful that would be followed by an assessment in the community. That would obviously take the case beyond the 26 week target of the PLO (and of course, given that the Children and Families Act provisions about timescales come into force next week, by the time of any final hearing, that would go beyond the new statutory requirement of 26 weeks). There were, however, three expert reports suggesting that the mother was making progress and that such an assessment might bear fruit.

The President was therefore considering whether to grant the adjournment and application for residential assessment, and doing so against the backdrop of the 26 week statutory position and the new provisions of the Children and Families Act as to exceptional circumstances that justify an adjournment of 8 weeks beyond that.

What was also in his mind was the new statutory provisions about expert evidence (which in effect incorporates into section 38 of the Children Act the current Rule 25 Family Procedure Rules tests and guidance)

21. For present purposes the key point is the use in common in section 38(7A) of the 1989 Act, section 13(6) of the 2014 Act and FPR 25.1 of the qualifying requirement that the court may direct the assessment or expert evidence only if it is “necessary” to assist the court to resolve the proceedings. This phrase must have the same meaning in both contexts. The addition of the word “justly” only makes explicit what was necessarily implicit, for it goes without saying that any court must always act justly rather than unjustly. So “necessary” in section 38(7A) has the same meaning as the same word in section 13(6), as to which see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, para 30, and In re H-L (A Child) (Care Proceedings: Expert Evidence) [2013] EWCA Civ 655, [2014] 1 WLR 1160, [2013] 2 FLR 1434, para 3.

This is what the President says about the statutory provision that care proceedings should be concluded within 26 weeks

24. Section 32(1)(a)(ii) does not describe some mere aspiration or target, nor does it prescribe an average. It defines, subject only to the qualification in section 32(5) and compliance with the requirements of sections 32(6) and (7), a mandatory limit which applies to all cases. It follows that there will be many cases that can, and therefore should, be concluded well within the 26 week limit. I repeat what I said in my first ‘View from the President’s Chambers: The process of reform’, [2013] Fam Law 548:

“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.”

The issue then was the statutory provision in s32(5)

A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly.

and what factors the Court should consider when determining whether to grant such an adjournment.

One might think that those factors are already set out in the Act

s32 (6) When deciding whether to grant an extension under subsection (5), a court must in particular have regard to –

(a) the impact which any ensuing timetable revision would have on the welfare of the child to whom the application relates, and

(b) the impact which any ensuing timetable revision would have on the duration and conduct of the proceedings;

and here “ensuing timetable revision” means any revision, of the timetable under subsection (1)(a) for the proceedings, which the court considers may ensue from the extension.

(7) When deciding whether to grant an extension under subsection (5), a court is to take account of the following guidance: extensions are not to be granted routinely and are to be seen as requiring specific justification.

The President cites various authorities (Re B-S and Re NL notably, as authorities for the principle that there will be cases where an extension of time IS necessary to resolve the proceedings justly)

31. In what circumstances may the qualification in section 32(5) apply?

32. This is not the occasion for any elaborate discussion of a question which, in the final analysis, can be determined only on a case by case basis. But some preliminary and necessarily tentative observations are appropriate

Let’s look at those preliminary and tentative observations

34. There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be “necessary”:

i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para 29, (b) FDAC type cases (see further below), (c) cases with an international element where investigations or assessments have to be carried out abroad and (d) cases where the parent’s disabilities require recourse to special assessments or measures (as to which see Re C (A Child) [2014] EWCA Civ 128, para 34).

ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed’ because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in In re B-S, para 49).

34. I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is “necessary” to enable the court to resolve the proceedings “justly”. Only the imperative demands of justice – fair process – or of the child’s welfare will suffice.

So, to skip to the chorus – three categories of case where an extension might be warranted (forgive my short-hand mnemonic prompts, which Malcolm Tucker has helped me devise)

1. The case was always going to be super-complicated from the outset (heavy duty fact-finding, FDAC cases, heavy duty international element, parents with disabilities such that specialised assessments are necessary)

“This case was fucked from the beginning”

2. Something massive emerges during the proceedings – (fresh allegations that need to be resolved, death or imprisonment of a key player, a realistic family member comes forward late in the day – “Auntie Beryl alert! Finally an answer – adjournment is going to be permissable for an Auntie Beryl situation!”)

“This case got fucked in the middle”

3. Litigation failure on the part of one of the parties means that it would not be fair to conclude the proceedings

“Some fucker has fucked up”

The Judge then goes on to praise FDAC but delivers this guidance (which probably has wider applicability)

38. Viewed from a judicial perspective a vital component of the FDAC approach has to be a robust and realistic appraisal at the outset of what is possible within the child’s timescale and an equally robust and realistic ongoing appraisal throughout of whether what is needed is indeed being achieved (or not) within the child’s timescale. These appraisals must be evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’.

Typically three questions will have to be addressed. First, is there some solid, evidence based, reason to believe that the parent is committed to making the necessary changes? If so, secondly, is there some solid, evidence based, reason to believe that the parent will be able to maintain that commitment? If so, thirdly, is there some solid, evidence based, reason to believe that the parent will be able to make the necessary changes within the child’s timescale

I think those principles have wider applicability, because the President goes on to use them in this case, which although the background is drugs and alcohol, is NOT a FDAC case.

For this particular case, this is what the President says (bear in mind that this is NOT a final hearing, but an application to adjourn the final hearing and seek a residential assessment. As far as I can tell from the judgment, no live evidence was heard. The remarks don’t leave much room for manoeuvre at final hearing…)

44. there is no adequate justification, let alone the necessity which section 32(5) of the 1989 Act will shortly require, for an extension of the case so significantly beyond 26 weeks. Again, there are two aspects to this. Looking to the mother, there is, sadly, at present no solid, evidence based, reason to believe that she will be able to make the necessary changes within S’s timescale. Even assuming that there is some solid, evidence based, reason to believe that she is committed to making the necessary changes, there is, sadly, not enough reason to believe that she will be able to maintain that commitment. In the light of her history, and all the evidence to hand, the assertion that she will seems to me to be founded more on hope than solid expectation, just as does any assertion that she will be able to make the necessary changes within S’s timescale. Secondly, I have to have regard to the detrimental effects on S of further delay. Far from this being a case where the child’s welfare demands an extension of the 26 weeks time limit, S’s needs point if anything in the other direction. I accept the guardian’s analysis.

If you were thinking that this was all very peculiar, I haven’t even got to the best bit

I have been sitting at Bournemouth in the Bournemouth and Poole County Court hearing a care case. It is a very typical County Court case

[There is nothing in the history of the litigation set out in the judgment that ever shows that the case was transferred from the County Court to the High Court. So is this binding authority about provisions of an Act which weren’t in force at the time the judgment was given, actually a County Court judgment? ]

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Posted in case law, children and families act 2014, timescales and tagged 26 weeks, 8 week extension, applying to extend the timetable in care proceedngs, bournemouth county court, children and families act 2014, factors that justify an extension to 26 weeks, president of the family division, re S, Re S (A child) 2014, s32(5) children act. Bookmark the permalink.

suesspiciousminds

Category Archives: children and families act 2014

Faking medical evidence

Ministry of Justice press release – fixxored

Allegations of abuse against a father

Research and stats round-up

Re-branding Child Arrangement Orders – draft MoJ press release

Making eye to eye contact (post adoption contact applications, some practical queries)

Being late to the party (turns out Auntie Beryl was Grandma Beryl…)

“Welfare of the child : Parental involvement”

Bundles

The President’s decision in Re S (26 weeks and extensions) Part 2

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