Category Archives: consultation

Transformers…. Cutting robots in disguise

Posted on April 9, 2013 by suesspiciousminds

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

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

 Hence

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

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

Here’s the waffle

 

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

 

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

 

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

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

 How much less?

 Ten per cent.

 

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

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

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

 

And experts?

 Waffle time

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

 

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

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

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

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

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

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

Decepticon is such an ugly word, I prefer Consultatron

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

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Reversing the dilution of “homeopathic’ Guardians?

Posted on February 18, 2013 by suesspiciousminds

The Ministry of Justice have published a series of consultation documents, setting out the contribution they suggest various ‘stakeholders’  (yuck) should bring to the table in our brave new world.

{I do like, though it is not the thrust of this post, that the Her Majesty’s Court Service contribution is to (a) send out the orders that the lawyers type up and email to them within 5 days, which doesn’t sound that onerous and (b) to have Court rooms available and Judges to sit in them. The phrase ‘don’t go mad’ springs to mind } 

The CAFCASS one interested me, to see what the MoJ think CAFCASS ought to be doing on the ground. 

 Warning, I am going to be snarky about our current ‘homeopathic Guardian’ model, not because I think that Guardians on the ground are bad or lazy (though of course, there are some who are, but just as you don’t judge GPs by Dr Shipman, and in the words of the Osmonds, one bad apple don’t spoil the whole bunch), but rather because I think their organisation has sold representation of children and the vital role of check and balance of robust Guardians to a LA down the river. 

They have responded to an unprecedented increase in demand for the services by watering down the role of representing children to such an extent that there’s barely any actual representation of children by Guardians left, and what we have is a ‘view on the papers’,  and run the risk that eventually their services will be dispensed with.

 I have seen many cases over the last few years with Guardians who have never actually seen a parent outside of the Court building, and where two visits to see a child is something of a miracle and something to be grateful for rather than being scope for savage criticism.

 So, this is one of those rare documents which is actually worth reading in full – it is fairly short.  I’ll pick out the good stuff here

 Consultation ends a week on Thursday  (28th Feb)

 Here is the document:-

 http://www.justice.gov.uk/downloads/about/moj/advisory-groups/cafcass-care-proceedings.pdf 

By first hearing

 The children’s guardian will provide assistance to the court at the first hearing in relation to the threshold, and the adequacy of the assessment carried out, or proposed, by the local authority.

The children’s guardian will appraise the proposed plans for the interim and, to the extent set out by the local authority, for the longer-term care of the child – whether by parents, others with parental responsibility, and/or other adults – ensuring that the local authority has given the plans due consideration. The children’s guardian will also assesses whether the plan is optimal, within the resources available to the local authority taking account of the child’s timescale.

 

[“Appraise” the plans is a lofty goal, quite often these days, “reading them” is a bit beyond the homeopathic Guardian model.  See, I did warn you about incoming snark at the outset]

By the time of the CMC   [which, let’s not forget will probably be by week 2 of the proceedings in the new model]   – underlining is mine

5. By the time of the CMC the children’s guardian will independently evaluate the local authority case to differentiate between thorough local authority applications and those where the guardian considers further work is needed. For the latter type of case, the children’s guardian will be intensively involved in the case on behalf of the child. The advice of the children’s guardian at the CMC is intended to help shape the case, and to support judicial case management.

6. The children’s guardian will read relevant parts of the local authority case records in order to gain a thorough understanding of the impact of previous interventions by the local authority and others. The children’s guardian’s analysis presented to court will be informed by direct work with the child and/or by observation of contact between the child and his/her parent(s)/carer(s).

7. The children’s guardian will analyse the local authority’s assessments and investigations, both direct and commissioned from others, to establish if all that could have reasonably expected to have been done at the pre-proceedings stage was done. This will be supported through constructive dialogue with the child’s local authority social worker.

8. The children’s guardian should, by the time of the CMC, see, hear, and know enough about the child to offer a clear view to the court about the child’s ascertainable wishes and feelings and the issues in the case affecting the child’s current and future safety and welfare. This includes assessing the benefit to the child from particular additional assessments and bringing to the court’s attention the child development implications of any delay within the case.

 

 

You know what? I would bloody love it, if Guardians were back doing this. Seeing the child, seeing the family, reading the records, grilling the social worker about the case, testing the evidence out in the field. That’s how we used to do it, and that was a period where we didn’t end up with a plethora of independent experts because the Guardian came to the table with a meaningful contribution.  That also reads to me as though the MoJ envisage that we will actually get the Initial Analysis on paper that is a requirement of the PLO but is a ‘custom more honoured in the breach than the observance’

 

For IRH/final hearing  (and throughout) – again, underlining mine

 9. The children’s guardian will advise the court about the possibility of the child’s attendance at court, and about any matters that s/he considers that the court should be informed. This advice may be given orally or in writing.

10. The children’s guardian will ensure that any reunification plan for a child is likely to be viable and to provide stability and permanence, especially if the child is returning to a home environment that was previously abusive or neglectful.

11. A written report must be provided to the court by the children’s guardian unless directed otherwise. The children’s guardian will produce high quality reports that are focused, analytical and evidence based, utilising the Cafcass analytical writing template. This will support robust judicial decision making and case management. Reports will generally be 3-6 pages in length, though the examination of a disputed or contentious issue may result in a longer report. Cross referencing information held elsewhere within the case file, in accordance with the Cafcass reporting to court policy, will ensure reports are succinct. Reports and evidence given in court will be informed by evidence from research.

 

12. The children’s guardian will provide the court with an analysis of parental capacity to meet the subject child’s/children’s needs, taking account of the timescale within which the identified needs must be met.

 

13. The recommendations of the children’s guardian will reflect the child’s needs in terms of placement and contact arrangements, explaining how these arrangements are likely to safeguard and promote the child’s welfare

 Not 100% sure that the combination of robust analytical reports and a 3-6 page aspirational length really goes together, but I applaud the spirit of what is here.

In a practical sense, that sort of length will mean that our current theme of Guardians not doing their own welfare checklist, as a counterpoint/comparator to the LA version, is likely to continue.  I LIKED, even as an LA lawyer, having an alternative version of the key analytical checklist before the Court, and would like to see it come back.

Let us see whether this actually gets adopted by CAFCASS, even if it does come in. After all, the PLO is routinely ignored.

What might be different is that, given the tone and direction we are heading in, that parents representatives will be forced, if they want an independent assessment, to persuade the Court that the Guardian’s contribution isn’t a reason to refuse that, and comparing it to what the MoJ say the Guardian should be bringing to the party would be one way of doing that.

 

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If you’re thinking of placing my baby, it don’t matter if it’s black or white

Posted on November 13, 2012 by suesspiciousminds

[Well, this is almost certainly the only time Michael Jackson has appeared in a blog on child protection…oh, wait, maybe not]

The Government have published its draft proposals to amend the Adoption and Children Act 2002.

They can be found here :-

http://www.official-documents.gov.uk/document/cm84/8473/8473.pdf

The first is a duty on Local Authorities to place children who they intend to adopt in a Fostering for Adoption placement (more usually called ‘concurrency’ placement) if possible.

The second is the removal of section 1 (5) from the Act.

Section 1(5) currently reads :- In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.

And it follows section 1(4) which is the welfare checklist.

It seems to be the view of the Government that those meddling politically correct Local Authorities   (can you be politically correct if politicians correct you?)  have been viewing s 1(5) as if it has superior status to s 1 (4)  – in which case, the thing to do would have been to shift it to one item in the welfare checklist, surely?

So they have just nuked it from orbit, that being, after all, the only way to be sure.

So the new section 1(5) will say “In Wales only In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

For some reason there aren’t any politically correct meddling do-gooder social workers, or perhaps there are no ethnic minorities, or maybe there’s some other reason inexplicable to me.

The explanatory notes do suggest that those factors still come into the welfare checklist as part of the child’s background and other relevant characteristics; but will no longer require any additional weight.

I don’t know – I have seen in my travels about the country some quirky adoption panels who wanted to talk at length about the African heritage of someone whose paternal great–great-grandfather had been from Senegal, though the other 31/32nds of their heritage was British and had lived in Britain all their lives.  But on the other hand, I am not as convinced as Michael Gove seems to be that there is a queue of white people desperate to adopt children of ethnic minorities, if only those pesky social workers would let them.

Nor am I convinced that nuking s1(5) has any real impact on s33 (6) of the Children Act

(6)While a care order is in force with respect to a child, the local authority designated by the order shall not—

(a)cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made;

So if the child in question had been more example, from parents who were practising Muslims, or Sikhs, I think there are still issues about whether a Local Authority is in breach of s33(6) by not at least TRYING to match with people who will follow that faith. If they search and fail, then so be it, but it seems to me that s33(6) still envisages that a LA will try to have the child brought up in the religious faith he or she would have been brought up in had the Care Order (and by extension Placement Order) were not made.

Unless we’re going to start doing that nifty and little known Adoption and Children  Act trick where you can make a section 21 Placement Order without ever making a Care Order PROVIDED the threshold criteria are made out.  (I’ve only ever done that once, in a peculiar case where the parents agreed s20 of the child and so care order wasn’t needed, but opposed Placement Order)

Anyway, if you have a view on the proposals, feed them back to the Government. They seem to be happy to make policy on about 50 people responding to a consultation, so you may be in luck…

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Practice directions make perfect?

Posted on October 5, 2012 by suesspiciousminds

 

Gosh, this is an insanely bloggy week.  Some consultation documents for new family law practice directions have flitted across my inbox today. I read them, so you don’t have to…

 

There are three big ones

 

One on experts pre-proceedings, which is obviously going to become more and more pertinent as the Government move the goalposts to artificially reduce the timescales for Court proceedings , sorry ‘shift the assessment process to pre-proceedings’.   It seems to me eminently sensible – there should be a proper LOI, documents shown to the expert should be particularised, and the expert should be told that they are to treat themselves and the assessment in exactly the same way as if it were being done within proceedings. 

 

 

One on the Official Solicitor, which is jawdropping.

 

1.1             The court will investigate as soon as possible any issue as to whether an adult party or intended party to family proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. An adult who lacks capacity to act as a party to the proceedings is a protected party and must have a litigation friend to conduct the proceedings on their behalf. The expectation of the Official Solicitor is that the Official Solicitor will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act.

1.2    Any issue as to the capacity of an adult to conduct the proceedings must be determined before the court gives any directions relevant to that adult’s role in the proceedings.

 

We all know that this has been the direction of travel for the Official Solicitor for some time – they simply can’t cope with the volume of cases that have come their way. But this is a recognition in a Practice Direction that for most cases, a person lacking capacity will have to instruct solicitors through a friend or member of their family.

 

No prospect for difficulties there.  There’s never anything massively sensitive within care proceedings about an adult that might not be appropriate to share with their family member. There’s never any conflict between family members and any shifting allegiances or falling out. And there’s never any conflict of interest between say a mother who wants to fight for her child, and the grandmother who is now instructing the mother’s representatives but who actually wants the child to live with her (grandmother) rather than the mother.

 

I can see that in some quarters, John Hemming MP for one, it might be thought desirable to take the Official Solicitor out of the picture, and have the family help the parent to give instructions to a solicitor, rather than have some remote figure of the State make those decisions.  I have some sympathy with that, and think that it is a perfectly legitimate subject for debate and if it is after scrutiny found to be BETTER to have the family do it than the State, then make the change.

 

 But what’s happening here is a dramatic shift in public policy from “where a person is incapable of instructing a solicitor, someone independent should represent their best interests” to  “anyone suitable in the family can instruct a solicitor on the parents behalf”,   not as a result of debate, or research, or analysis, but because the current workload is too much.

 

Just as we massively scaled down the role of Guardians because CAFCASS was overstretched  (and look what that did – ushered in an era of getting three or four experts on every case, delaying and obfuscating and costing the country), we’re making the same error here.  Instead of properly resourcing the Official Solicitor, we’re just abandoning the principle.

 

 

I am mystified as to what a parent’s representative is supposed to do, faced with a capacity certificate saying the parent can’t give instructions, and two competing people who want to be the litigation friend.  The solicitor can’t chose, the client can’t chose. How do you resolve that?  What if the papers you’ve seen show that the person being put forward as the litigation friend failed to protect the client as a child and is largely responsible for the mess the client now finds themselves in as an adult?

 

 

 

The third one is on the instruction of experts within proceedings. Everyone follows the current practice direction on experts slavishly, as we know, so a fresh one is bound to fix any problems.

 

Here’s the gist of it – try to go for single jointly agreed experts rather than going off to get one each, as if we were in 1980s civil litigation.

 

 Well, we already do. Ah, but now they have an acronym  SJE  (Single Joint Expert) so that is going to make all the difference.

 

The Practice Direction does clarify that telling a prospective expert something at all about the case so that they can (a) tell you whether it is the sort of thing they can do (b) when they can do it by and (c) how much they would like to be paid for it, knowing full well that the estimate they give is subject to the whim of the LSC, is definitely not a contempt of Court.

 

[That is of course, helpful – but given that the Practice Direction is not in force yet, raises the unfortunate spectre that if it is necessary to have a change in law to make sure that doing that WON’T be a contempt of court in the future, that it sort of is now?]

 

And then what will be necessary in the application for an expert – underlining is mine.

 

an application or the court’s permission to call an expert or put in evidence an expert’s report, for an expert to be instructed or for the child to be medically or psychiatrically examined or otherwise assessed for the purpose of obtaining expert evidence for use in the proceedings must state-—

(a)    the discipline, qualifications and expertise of the expert (by way of C.V. where possible);

(b)    the expert’s availability to undertake the work;

(c)     the timetable for the report;

(d)    the responsibility for instruction;

(e)    whether the expert evidence can properly be obtained by only one party (for example, on behalf of the child);

(f)      why the expert evidence proposed cannot properlybe given by an officer of the service, Welsh family proceedings officer  or the local authority (social services undertaking a core assessment) in accordance with their respective statutory duties or any other party to the proceedings or an expert already instructed in the proceedings;

(g)    the likely cost of the report on an hourly or other charging basis;

(h)    the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid;  and, if applicable, whether public funding has been approved.

 

 

And then what is to go into the order – note that it is going to be necessary to append the questions so that the Court can determine that they are kept to a manageable number and are clear and focussed.  That’s good news for solicitors, since it means an end to the interminable tedium of back and forth emailing about questions and the questions being settled by counsel at Court.

 

I think that this is a GOOD thing.  It will mean that CMC’s will take substantially more court time than previously, as the questions will have to be drafted before an order can be lodged.

 

The terms of the draft order to be attached to the application for the court’s permission

3.8    FPR 25.7 provides that a draft of the order giving the court’s permission mentioned in FPR 25.4 is to be attached to the application for the court’s permission. That draft order must set out the following matters—

a)      the issues in the proceedings to which the expert evidence is to relate and which the court is to identify;

b)      the questions relating to the issues in the case which the expert is to answer and which the court is to approve ensuring that they

(i) are within the ambit of the expert’s area of expertise;

(ii) do not contain unnecessary or irrelevant detail;

(iii) are kept to a manageable number and are clear, focused and direct;

c)      the party who is responsible for drafting the letter of instruction and providing the documents to the expert;

d)      the timetable within which the report is to be prepared, filed and served;

e)      the disclosure of the report to the parties and to any other expert;

f)       the organisation of, preparation for and conduct of any experts’ discussion (see Practice Direction 25E – Discussions between Experts in Family Proceedings);

g)      the preparation of a statement of agreement and disagreement by the experts following an experts’ discussion;

h)      making available to the court at an early opportunity the expert reports in electronic form;

i)        the attendance of the expert at court to give oral evidence (alternatively, the expert giving his or her evidence in writing or remotely by video link), whether at or for the Final Hearing or another hearing; unless agreement about the opinions given by the expert is reached at or before the Issues Resolution Hearing (“IRH”) or, if no IRH is to be held, by a date specified by the court prior to the hearing at which the expert is to give oral evidence.

 

 

 

I think the two on experts are fine, and the one on the representation of vulnerable adults who lack capacity is awful.

 

It looks as though the plan is for these Practice Directions to come in some time before the end of this year. Sadly, the consultation process is over before I ever saw the documents, such is life. I doubt my snarky mutterings would have made any difference anyway.

 

And in the words of Meat Loaf – two out of three ain’t bad.

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White papering over the cracks?

Posted on October 4, 2012 by suesspiciousminds

 

A very brief look at the draft Care and Support Bill.

 

 

There’s a consultation going on (isn’t there always?)  this time on Safeguarding for adults, and whether some new powers should be introduced.

Firstly, it recommends removing s47 of the 1948 National Assistance Act, which was the power to remove someone from their home. They say, and I tend to agree, that  “Enacted in a very different era, its language and intentions are not compatible with our current approach to community-based support that promotes and protects people’s human rights “

 

I completely agree that it is a dangling remnant of a bygone era when doctors always knew best, and I’m not sure it is deeply compatible with Human Rights and probably should be scrubbed from the statute books.

 

Having said that, I’m not sure that s47 is an active problem – I can recall having only even looked at it as a possibility (and then discounting it) in one case.  I’ve never heard of anyone ever applying for such an order.   [It is interesting, for example, that on the bible on community care law  – Luke Clements and Pauline Thompson’s  “Community Care and the Law”, the section on s47 removal powers is just under a page long and cites no case law about it at all. ]

 

In case you want to know, here is verse, and also chapter

 

47 Removal to suitable premises of persons in need of care and attention. E+W

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

(2)If the medical officer of health certifies in writing to the appropriate authority that he is satisfied after thorough inquiry and consideration that in the interests of any such person as aforesaid residing in the area of the authority, or for preventing injury to the health of, or serious nuisance to, other persons, it is necessary to remove any such person as aforesaid from the premises in which he is residing, the appropriate authority may apply to a court of summary jurisdiction having jurisdiction in the place where the premises are situated for an order the next following subsection.

(3)On any such application the court may, if satisfied on oral evidence of the allegations in the certificate, and that it is expedient so to do, order the removal of the person to whom the application relates, by such officer of the appropriate authority as may be specified in the order, to a suitable hospital or other place in, or within convenient distance of, the area of the appropriate authority, and his detention 5and maintenance therein:

Provided that the court shall not order the removal of a person to any premises, unless either the person managing the premises has been heard in the proceedings or seven clear days’ notice has been given to him of the intended application and of the time and place at which it is proposed to be made.

(4)An order under the last foregoing subsection may be made so as to authorise a person’s detention for any period not exceeding three months, and the court may from time to time by order extend that period for such further period, not exceeding three months, as the court may determine.

 

 

So, I would agree that s47 be terminated with extreme prejudice, but it isn’t going to transform the world we live in.

 

The other big proposal is that there should be statutory principles about adult social care and safeguarding  (along the lines of the principles enshrined in the Children Act) , and to put it right at the beginning  – s1 the general duty of a local authority in exercising any powers under this Act with regard to an adult is to promote that adult’s well-being.

 

Again, I see no problem with that.

 

Then to give clear legal principles as to entitlement to support, including entitlement for carers and the right to insist on this being made by direct payments.   I remain sceptical that direct payments, or personalisation, is quite the magic wand that the Government believe it to be. I can see the concept that an individual should have the resources given to them to decide how they want to spend it on meeting their needs rather than having a paternalistic state decide, but I think in practice, it massively overlooks that adult social care tends to be given to the very most vulnerable members of society who may not be in quite the same position as a Local Authority bulk purchaser of services to achieve such good value for money. Nonetheless, direct payments and personalisation are the miracle cure, and thus we’re going to have them enshrined in legislation until such time as Government decides that passing the buck to vulnerable people to meet their own needs with a small amount of cash doesn’t really work.

 

 

This is a particularly interesting bit – clauses 31-33   – a person receiving a package of support will be entitled to the same package of support if they move to another area [at least until fresh assessments are done].  That is good for the person, certainly.

 

Very bad for the receiving local authority if the first LA realise that the person is planning a move and decides to offer them a ‘moon on a stick’ package of support which is Rolls Royce, knowing that they will only have to provide it for a week before the new LA gets lumbered with it for much longer.

 

It may well be a chance for festering scores to be settled between LA’s – it’s practically a statutory “griefing” mechanism.  [But maybe I am being too cynical, and neighbouring authorities will work together to achieve good outcomes for vulnerable adults moving between their authorities, just as they always endeavour to do now]

 

I do very much like the provision that where a person is placed in area B by Local Authority A, it will be Local Authority A who remain responsible for that person, and that will hopefully resolve a lot of inter-authority bickering.

 

 

There will be for the first time in statute, provisions about adult safeguarding, setting out the duty to carry out enquiries into suspected abuse, and there is discussion about whether the State should be able to apply for a warrant to gain access to a vulnerable person if it is believed they are being abused in order to investigate.

 

 

The consultation on that runs until 12th October, so if you have firm views about whether or not the State should have the ability to seek a warrant to enter the home of someone believed to be a vulnerable adult being abused, and the circumstances that would trigger such a warrant being granted, speak up quickly.

 

There are also interesting ‘smoothing’ provisions aimed at meeting the gap where a young person receives support and assistance from the LA under Children Act legislation until they reach 18, then get nothing at all whilst they wait for a community care assessment of their adult needs. The new proposals will ensure that the package of support they are getting as a child continue up until the community care assessment is done and a fresh package of support put in place.  I have to commend that, as being a gap that needed to be filled and a good proposal for filling it.  

 

All in all, I think this is a decent piece of draft legislation, and doesn’t contain anything that I consider to be outrageous or ill-conceived  (my personal anxieties about personalisation aside, that’s a direction we’ve been travelling in for a long while now)

 

 

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Family preservation versus child rescue

Posted on September 11, 2012 by suesspiciousminds

I was kindly sent Dr Peter Dale’s response to the Government consultation on contact with children in care, and sibling placement in adoption.

 

I blogged about those consultations here :-

 

https://suesspiciousminds.com/2012/07/23/we-are-family-ive-got-all-my-sisters-with-me-or-beware-of-the-leopard/ 

 

 

Anyway, here is Dr Dale’s response.

 

http://www.peterdale.co.uk/wp-content/uploads/2011/08/ContactPaperResponseAug2012.pdf

 

 

Whilst I don’t agree with absolutely everything Dr Dale says, I like to read things that I don’t agree with, and I particularly like reading things that make me change my view about things.  This document did that, and for that reason, I commend it to you.

 

It also chimed with some things that were in my mind about where we are currently headed with family justice, and my overriding uneasy impression that there’s nothing in the Family Justice Review or the legislation and practice that’s going to flow from it which is about the fundamentals of whether Society wants what we’re currently doing, and whether we ought to step back from the 1989 Act and see how it is working. 

 

Not in terms of processes, and costs and times – it’s awful on all of those things, and that’s what the Family Justice Review has focussed on, but on the bigger issues of whether the whole interaction between State and parents is what the general public would want, or whether, as is alleged by critics of the system it has created a horrible sense of injustice and unfairness where professionals are powerful and parents are powerless.

 

Are the people working within the Family Justice System out of step with what society as a whole would think about when the State ought to intervene and care for your children, and what is child abuse, and what is what Hedley J described in Re L as Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.

 

 

It’s always a good thing, I suspect, to question that. It’s very easy to assess any case against the backdrop of your own experience, but even when that experience seems quite large, it is really just tiny and trivial compared to the overall numbers of care proceedings.

 

And whilst I can look at the risks of harm in a case and have a good feel for whether the Courts I appear in will consider it manageable or not manageable, that gives me no proper sense of what UK society as a whole would think.

 

I think that most people in the UK would agree that children should not be sexually abused  (although even on that, one person’s view as whether a man who five years ago groped a fifteen year old daughter of a previous partner is now a risk of sexual abuse to his own baby boy is probably going to differ from anothers),  but I suspect that there’s a multitude of views on physical abuse and where the line is drawn between parental chastisement and abuse  (I think most people would say no to broken arms and legs, but there would be a difference of opinion about bruising) and neglect would be very hard to get a consensus on, and emotional harm even more so.

 

Is there a value in care proceedings calibrating themselves against what the general population or society at large would consider to meet Significant Harm?  Where do we want, as a society, to draw the line of ‘this is unusual or not very good parenting but let them get on with it’  against ‘this child can’t stay at home’

 

I think it’s something that’s not really been attempted, and I’d be interested in the results. Should a parent not have a clear idea, long before they ever meet a social worker, of what sort of parenting falls so below society’s standards that the State would intervene?

 

I would like to hope that if you pulled out a random judgment from any care case decided by any  Court in the country since the Children Act came into being, and gave it to a journalist, they might think at worst  “well, that could have gone the other way, and it was finely balanced. I might disagree, but I can see why it happened” but would never think “god, that’s just outrageous, how could they have possibly not got those kids back? This is a scandal”  

 

I’d like to hope that, but I can’t say for certain. Maybe of 1000 random cases, there’d be one that produces the ‘outrageous’ reaction, maybe 60, maybe 300.  We have no way of knowing.  I suspect, hand on heart, that there are more ‘outrageous’ cases than I’d like to believe, but less than the Hemming/Brooker camp would believe.  But either of us could be wrong. We might both be (and probably are)

 

I’d like to see, for example, the collation of anonymised threshold documents from every case, so that research could be done on whether this fluctuates over time and between areas, and to have a proper sense of what it is, in  a family justice system that results in Care Orders being made.

 

Anyway, enough about me, on with Dr Dale.

 

He opens with this :-

 

“there are major philosophical, theoretical, political and cultural differences as to what constitutes a child’s “best interests”. Such differences are apparent throughout the history of childcare literature, and dominant viewpoints rise and fall. The field of child protection in general, and specifically permanent separation/adoption, is permeated by variations and polarities of apparently reasonable opinion. Over time the social policy pendulum has swung back and forth across the continuum that has “familypreservation’’ principles at one pole; and “child rescue” principles at the other. Each position is internally logically consistent and can call on research to support its belief systems (as to what is “best” for children). Notably each paradigm/mindset when implemented gives rise to unintended negative consequences (which may only become apparent over time).”

 

 

And I think he is completely right. I suspect, as he believe, that we are in a period of “child rescue” being the dominant thinking, and that this is colouring Government thinking on the Family Justice Review, on adoption scorecards and on these consultations.

 

[Cynically, if you’re in the Government, and you’re imagining the headlines for ‘another Cleveland’ or ‘another Baby P’ and had to choose one of those two to encounter, I suspect most ministers would choose another Cleveland.   I’m sure it has never been as overt as that]

 

 

Dr Dale talks at some length about the risks of ‘child rescue’ and I think it is worth setting them out in full, because they are well constructed and interesting.

 

“In essence, what the DoE/Narey report recommends is a reinforcement of “childrescue” principles and practices that in the 1940s–1960s saw thousands of children in state care being forcibly emigrated to places such as Australia, Canada and South Africa without the knowledge of their parents (and without any continuing contact). Of course, at the time, the agencies involved (including Children’s charities such as Barnardos) considered that this was “in the best interests” of these children. History informs us otherwise (Humphrey 1996).

 

It is of note that compulsory adoption, and adoption without contact, is anathema in Australia and New Zealand because of the history of mass forced adoption of Aboriginal and Maori children known as the “Stolen Generation” (http://reconciliaction.org.au/nsw/education-kit/stolen-generations/). The South Australian government formally apologised on 18 July 2012 for this history of forced adoption. The following notice appeared in the South Australian press on 14/7/2012:

Government of South Australia: Forced Adoption Practices.

“On behalf of the South Australian Government the Premier, the Hon Jay Weatherill MP, will deliver a formal Apology to mothers and fathers whose children were removed because of forced adoption practices from the past, and to people who were separated from their parents as infants as a result of those practices. The Apology will be delivered at the South Australian Parliament from 11am on Wednesday 18 July 2012.”

1.4 I predict a UK government apology for recent and current practices of forced adoption in about 30 years time.

1.5 In this context, the proposals in the DoE/Narey paper are technical measures to further implement “child rescue” principles, policies and practices. In my view, a broader theoretical perspective is required to ensure that the proposed changes do not have adverse outcomes and unintended negative consequences.

 

It is always worth a reality check, and this whole section is one.  Maybe we will recoil in horror in 30 years time at the idea of forced adoptions.

 

It may well be that in years to come, the concept of the State adopting children against the will of the parent may be something that boggles the mind, just as reading that in the 1940s-1960s the State took children in care and forcibly emigrated them to the other side of the world boggles the mind now.  I’m sure that nobody involved in that practice at the time thought that they were doing anything other than something that was good for the children, even if with the passage of time it now seems unfathomable, and we can’t disregard the possibility that in time, things that seem ‘good practice’ now will become anathema.

 

For that reason, I would support a family justice review that didn’t look just at processes and system but the whole overarching philosophy of how the interaction between State and parents who are considered to be not meeting their children’s needs should take place. What does Society want from a family justice system?  How much help does Society want to give struggling parents? More than is delivered at present, I suspect.

 

 

There’s some very detailed deconstruction of the Kenrick research that colours so much of the Government consultation on contact. I’m not going to get in the ring between Dr Dale and Kenrick, but I would suggest that at the very least, and as with any research, accepting it uncritically is not wise to do. If you’re involved in any way with contact between children and parents, I think Dr Dale’s analysis of this is worth reading, even if you eventually settle more on the Kenrick side of the debate, because it is a properly constructed assessment of the other side of the coin.

 

 

Some more on compulsory adoption here :-

 

1.45 Compulsory adoption is often referred to as being the most draconian outcome in UK law since the abolition of the death penalty. In cases of murder, the death penalty was imposed following a finding of guilt by a jury at the criminal standard of proof (beyond reasonable doubt). The outcome of compulsory adoption occurs on the basis of findings by a single judge at the lower civil level of proof (balance of probabilities). In both scenarios, miscarriages of justice are known to occur.

 

1.46 In the same way as a hanged man cannot be revived and reprieved, children who have been wrongly subject to compulsory adoption cannot be returned to their innocent parents. [e.g. Norfolk County Council v Webster [2007] 2 FLR 415]. In the sad case of four-month-old baby Jayden Wray in 2012, two parents were accused of his murder; and had a new baby removed from their care with a plan for adoption, until it was confirmed that Jayden had in fact died from undiagnosed rickets. (LB of Islington v Al Alas and Wray [2012] EWHC 865 (Fam).) Faster compulsory adoption raises risks of inadequate investigation in complex medical cases; proper exploration of alternative (less draconian) placements (e.g. kinship care); and scrutiny of the judicial process.

 

 

 

[As someone within the system – and I am trying here to be honest in accepting that that doesn’t necessarily put me in the best position, I think cases should be determined on the civil standard of proof and by a Judge, rather than to the criminal standard and before a jury – but I do think that a proper debate about this to reach a consensus as to what Society thinks is legitimate. And if Society had a different view to me, the law ought to be looked at.   I can see an argument that can’t be dismissed out of hand  that if a person is accused of stealing from a shop, they can insist on a trial by jury and the criminal standard of proof, but can’t get that for a determination of whether they’ve abused their child]

 

I share Dr Dale’s fears that we are rushing into a faster resolution of the most drastic step that the law can take in a persons life, without having first done the most basic exercise of  “Is the system actually getting the right answers now?”

 

 

As Billy the Kid once said  “Speed’s fine, partner, but accuracy’s final”  

 

I know the stats about the high proportion of cases where the order sought by the Local Authority is the one made by the Court, and also the NSPCC research on the children who were rehabilitated home having too high a proportion going on to suffer further significant harm, or to go on to come back into care.

 

But I am troubled by the fact that we don’t have a clear sense of whether we currently are on the ‘family preservation versus child rescue’ scale is a place where society and the general public would be content with, if they knew.

 

I would like to think that if there were some huge detailed investigation whereby proper impartial researchers with access to proper information and data would conclude that in the vast majority of cases, Courts make Care Orders for proper reasons and that whilst mistakes are made and every one is a human tragedy, they are rare and the appeal process rectifies them.

 

But I have to accept that I am within the system, and maybe I believe that because the alternative is too hard to contemplate. Those outside the system, certainly a significant body of them, believe the opposite, that a proper root and branch investigation would show that the State is letting families down, removing them for insufficient reason and not doing enough to support them, and that social workers are mistreating parents.

 

Dr Dale’s consideration of the case of Re K (A Child: Post Adoption Placement Breakdown) [Neutral Citation Number: [2012] EWHC B9 (Fam)].  Which I have blogged about here    

 

 

https://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

is very interesting. That’s clearly a case where judicial scrutiny of a case has led to the Judge determining that the Local Authority’s treatment of the parents was ‘not only inappropriate and wrong but cruel’    and it’s easy to see, when you read cases like this, why the people who rail against Local Authorities have a point.  Sometimes Local Authorities behave extremely badly. What we don’t know, is how often.

 

This is not the sort of thing that should happen, but it still does, and we have no way of knowing, without a proper independent look at the body of care cases as a whole whether this is an awful aberration (as I would claim) or an illustration of how social workers behave and usually get away with (as the forced adoption camp would claim).

 

3.23 If the UK practice of compulsory adoption continues with no direct contact for the child with natural family members during childhood, I predict in the not-too distant future, an increase in the phenomenon of adoptive parents being rejected and abandoned by their alienated adoptive children who ‘vote with their feet’ and return to their natural families. This is a tragic outcome for all three parties in the ‘adoption triangle’. It is one, in my experience, that adoptive parents are not warned to expect by social/adoption workers.

 

 

 

I suspect that the consultation, as I hinted darkly, is already a done deal, that the new thinking is all about ‘child rescue’   – I note that there’s nothing being launched by the Government to measure the statistics of children successfully rehabilitated to the care of parents, or of interventions with troubled families that avoid the need for care proceedings, or a league table congratulating Local Authorities for being able to keep children within the family.

 

 

It would be nice to have an emphasis on the importance of ‘family preservation’ and balancing it properly against ‘child rescue’ on the basis that it is the right and proper thing to do, rather than as a knee-jerk reaction to another Cleveland, Orkney or Rochdale.

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Adult safeguarding investigation

Posted on August 30, 2012 by suesspiciousminds

 

A discussion of Davis & Anor v West Sussex County Council 2012

 

I’m always mindful that I do much less blogging on adult social care than I would like. Child protection work is my day to day bread and butter, so that’s invariably my focus, but I do like to discuss adult social care when I can, and I’ve neglected it recently.

 

So, given a combination of insomnia and this interesting case, the opportunity arises.

 

http://www.bailii.org/ew/cases/EWHC/QB/2012/2152.html#para26

 

This was a judicial review brought by owners of an adult care home against the Local Authority’s decisions at a safeguarding case conference that 15 allegations made against staff were substantiated and 10 allegations made against staff were “inconclusive” and that the staff should be referred to the Independent Safeguarding Authority and the Nursing and Midwifery Council for possible disciplinary action. To cut to the chase, the claimants won the jr, and the decisions of that case conference were quashed.

 

So what went wrong, and how can that be avoided in the future?

The Claimants main objections to the process, all vigorously challenged by the Defendant, are that;

 

(a) They were not given adequate notice of the allegations made against them so as to allow them a fair opportunity to present their case at the Case Conference. They were only provided with a copy of the very substantial Investigation Report – which set out the allegations for the first time, albeit in unclear form – one working day before the Case Conference.(b) They were not shown the evidence against them.

(c) The Case Conference was not shown relevant evidence generated by the investigation, both for and against them.

(d) They were not permitted, or given an adequate opportunity, to produce relevant evidence to the Case Conference, whether through witnesses or otherwise.

 

and we can already see, by paragraph 3 of the judgment, that this is probably not going to end well for the Local Authority. If those objections are made out, the LA are going to lose, on the article 6 point if nothing else, but almost certainly it would be unreasonable to make determinations that affect the individual livelihoods and career of staff and the financial viability of the organisation as a whole without them having proper opportunity to defend themselves.  (I hasten to add that these claims were vigorously challenged by the Local Authority)

 

The case very helpfully sets out the statutory and binding guidance framework for conducting safeguarding investigations, and would be a useful starting point if one wanted to get to grips with what the duties and requirements are. (The joy of case law is that it often sets out all of the background knowledge in one neat place, saving you hours of leafing through separate sources or even locating what those sources might be)

 

What is interesting about this case is that of course there was a contract between the LA and the claimant for the provision of these services. The claimant ran their case largely on public law grounds  (i.e that this was an administrative decision of a public body which must be taken in a Wednesbury reasonable manner) and the LA largely on contractual grounds (i.e that the issue of investigations, cooperation with them, being bound by recommendations, dispute resolution etc were all contained in the contract, and this was a contract dispute  – and ultimately that the decision was about whether to renew the contract that existed between the Claimant and the LA)

This is interesting, at paragraph 26  (and was the part on @celticknottweet ‘s tweet that led me to dig a little deeper)

It is not the function of this court to decide whether or not abuse took place. The court is concerned with the process by which allegations were investigated. There is some disagreement about the long and complex dealings between the parties over a lengthy period and Mr McGuire QC for West Sussex places emphasis on what he describes as ‘the true factual context’.

 

So, it would not matter if the allegations had merit or substance, the JR court would not be looking at that – they would be looking at whether the process of investigation and opportunity to defend and decision-making process was fair, not whether or not the abuse alleged had taken place. The Court was not conducting a judicial determination of the allegations, merely the process.

 

On that very issue, here is the nub of the judgment  –  the case against the Claimants and their staff was produced in a 22 page report at 7pm on 8th December, for the conference on 10th December. The Claimants request for the conference to be adjourned to allow them time to consider the report and respond in writing was refused.  Two members of staff were refused admission to the conference (the Court accepted that there were legitimate reasons for this) but that decision made on the day, allowed there to be nobody present at the Conference who could speak to the day to day running of the home.  The meeting lasted for 8 hours, and there were “ten on one side and one on the other”  – the Claimant handed a solicitors letter to the Chair who declined to show it to anyone else.

    1. By the middle of 8 December nothing further had been heard from West Sussex about the conference set for 10 December and Mrs Hillary-Warnett sent a reminder to the Council which responded at 4pm confirming that the conference would proceed at 9.30 on 10 December and that a copy of the report would be hand delivered. This was received at 7pm on 8 December. It was 22 pages long alleging abuse against thirteen residents of Nyton House (five of whom had since died).

 

    1. The Claimants submit that the report is incoherent and unclear about what is being alleged against whom. The report referred to the investigations as having been ‘extensive and complex’ and it had taken seven and a half months to produce. However for much of that time the police had been the lead investigator and it had been difficult for West Sussex to carry out the necessary and important work. Of the thirteen residents identified in the report only one had been placed at Nyton House under the Contract. Every relative of a resident at Nyton House that had been questioned was positive about the quality of care provided.

 

    1. Mrs Davis’s evidence, unsurprisingly, is that she was quite unable to deal with the report in the very short time available. On 9 December the Claimants’ solicitors wrote to Mr Yong pointing out the difficulties of holding a Case Conference within the proposed timescale and proposing an adjournment for something over ten days so that Mrs Davis could consider the report and provide a written response within seven to ten days. The solicitors suggested as an alternative that ‘no expectation or pressure’ be put upon Mrs Davis at the next day’s Case Conference to respond and that she should be given the opportunity to provide a detailed written response within seven to ten days. The solicitor could not themselves have attended at such short notice.

 

    1. Mr Yong rejected both options by fax at about 6pm on 9 December.

 

    1. So Mrs Davis attended the Case Conference but took with her for support Mrs Hillary-Warnett, Ms Hillary who was the acting manager and, apparently, a Mr Fieldhouse the son of one of the residents. Mr Fieldhouse apparently soon left. Mrs Hillary-Warnett was refused admission on the basis that she was an alleged perpetrator, a decision understandable in the circumstances. Ms Hillary was also refused admission for similar reasons. So no one remained who was able to speak to day to day management issues at the home. Mrs Davis then attended the meeting alone. She was 77 years old and faced ten members of the safeguarding authorities, eight of whom were employees of West Sussex. Mrs Davis handed up her solicitors’ letter of 9 December but Ms Attwood, the chair declined to consider it or to show it to the others present.

 

    1. The meeting lasted more than 8 hours. It is unclear what documents were available to the panel. Mr McGuire emphasises the extent of the discussion at Mrs Hillary-Warnett’s interview with the police, at which all matters complained of were apparently covered. However there is nothing to suggest that the record of the interview was disclosed or discussed with the panel despite the fact that it must have been one of the factors leading the police to decide to take no action. It does not appear from the record that notes of other interviews were available to the panel either. West Sussex, surprisingly, relies on the fact that Mrs Davis did not herself at the conference ask to have the matter adjourned. But it was or should have been obvious that she wanted it adjourned because her solicitors had written to say so and Mrs Davis had reminded the meeting of the letter. Ms Attwood points to the fact that Mrs Davis started by making it clear that she was going to follow her solicitors’ advice to make no comment but then chose to go on and comment on a number of occasions. There was no indication that West Sussex saw anything amiss in relying on what this elderly lady went on to say, despite knowing of her solicitors’ advice. During the lunch break which according to Ms Attwood was ‘relaxed’ Mrs Davis made a remark to her informally. Ms Attwood “suggested … that she share these comments with other attendees when the meeting reconvened and she agreed and … repeated this statement towards the end of the meeting”. This was unfair.

 

    1. West Sussex was aware of Mrs Davis’s limited role as owner not manager of Nyton House. The chair refused an adjournment, gave Mrs Davis no proper opportunity to prepare for the meeting, refused even to consider her solicitors’ letter, continued for eight hours knowing that she was an elderly lady, where the meeting was ten on one side and one on the other and where even the informality of a brief lunch break was abused. Nevertheless conclusions were drawn about Mrs Davis’s credibility and her fitness to own a care home. These were in part based on detailed matters relating to individual carers and patients (see paragraph 18 of Ms Attwood’s statement) which West Sussex knew or should have known were outside Mrs Davis’s knowledge given the impossibility of looking into all these allegations in such an absurdly short time and its decision (for reasons which were of themselves legitimate ) to exclude from the meeting those who would have had the answers . West Sussex, as Mr McGuire put it, considered that Mrs Davis had ‘made a long series of admissions’.

 

    1. I again remind myself that the prime object of the investigation was to protect vulnerable adults and to prevent abuse not to give particular consideration to Mrs Davis. But her treatment at and around the meeting was deplorable.

 

    1. The Case Conference concluded that fourteen allegations of abuse were substantiated and ten were ‘inconclusive’. An allegation of ‘institutional abuse’ was found to substantiated based amongst other things on an ‘incestuous management and ownership structure’, an odd description of a family business. The conference imposed 45 ‘actions’ mainly on Nyton House. They also, referred, with potentially devastating professional and personal consequences, Ms Hillary, Ms Bidwell and Ms Hillary-Warnett to the ISA and NMC.

 

    1. The policy required minutes of the Case Conference and its outcomes to be sent to the Claimants within five days but these were not received within that time but delivered to the Claimants thirteen days later on 23 December with a request to respond within seven days (which would have been 31 December) shorter than the ten days permitted by the policy.

 

  1. It is not necessary for my decision for me to evaluate the quality of the decisions taken at the Case Conference but, having looked at the relevant material it seems to me that the submissions that there were serious flaws in the Defendants’ approach, for the reasons set out in paragraph 89 of Mr Purchase’s written argument, are well-founded. The object of the Case Conference was primarily to investigate allegations in the interests of protecting vulnerable adults, not to make determinations about Mrs Davis or the Case Conference and so it is understandable to a degree that West Sussex did not see the vulnerability of Mrs Davies as a concern.

 

and then this

 

52. West Sussex had started to investigate the allegations in April 2010 and, partly as a result of the police intervention, had not reached or communicated its conclusion orally until 10 December. It had not communicated its conclusions in writing until 22 December. It is hard to see how a responsible council genuinely seeking the views of the Claimants could have expected them to respond within a ludicrously short timescale set to expire on 31 December in the middle of what, for so many, is the Christmas and New Year break. In the event the council extended the deadline to 21 January 2011 and on 24 January the Claimants’ solicitors submitted a response running to 45 pages with a further eleven pages of attachments.

 

[This is the bit in the judgment, where if you’re for the Local Authority, you know beyond any doubt that you have lost on the public law case, your only hope is that the Judge agrees with your primary case that this is a contractual dispute, not a public law dispute. You are probably not optimistic about the prospects of that, at this point]

 

    1. Mr Purchase contends that the decisions of the Case Conference were made in the exercise of a public function. It was attended and conducted by members of public bodies carrying out their various statutory functions and to protect residents of care homes from abuse. Those functions are controlled by governmental guidance and published local policy and do not derive from contract. The point is starkly illustrated by the fact that only one of the residents who are alleged to have been abused was placed at Nyton House by the local authority under the Contract. He submits that while there is a contractual dispute following on from the allegations of abuse and the action taken by West Sussex following the decisions at the Case Conference there is no challenge to the Defendant’s exercise of its contractual rights in stark contrast with the facts in Caerphilly (a case in which Weaver was not cited and, which Mr Purchase argues, is wrong).

 

    1. I follow the guidance given by the Court of Appeal in Supportways and Weaver. In Supportways the question was whether a review which led to the decision not to renew a contract was a public law matter. As I read the judgments an applicant for a judicial review who has a contract with the body sued must establish a relevant and sufficient nexus between the matters complained of and the alleged unlawful exercise of public law powers. The caution about permitting a public law remedy does not apply to the same extent if the issue is not, as Neuburger LJ put it, ‘fundamentally contractual in nature’. The issues here are not fundamentally contractual or, to borrow the words of Elias LJ, ‘in the nature of a private act’.

 

    1. West Sussex responded to allegations by starting an investigation under its regulatory powers which was to lead to findings of abuse of thirteen residents at Nyton House only one of whom was there under a contract with West Sussex. The original complaint led swiftly to the exercise of the contractual power of suspension about which the Claimants’ solicitors corresponded. At different points in the investigation notices were given under the Contract. The Claimants’ solicitors’ letters referred to contractual rights, as well as to those under public law but there are also letters from West Sussex indicating that the two are seen as separate matters. When the decisions now challenged were taken at the Case Conference in December 2010 Default Notices under the Contract were soon given and one of the West Sussex employees present at the conference Mr Ian McCarthney attended because his responsibilities were for management of contractual matters. But it is plain that the investigation would have been carried out whether or not a contract had been in place between the parties as would the process of conference and decision-although the actions to be taken as a result would have differed. West Sussex issued Default Notices under the contract following the case conference but this was one of a series of steps consequent upon the decisions. It seems to me that West Sussex was rightly and primarily concerned with investigating allegations of abuse under its legal powers.

 

    1. The contractual issues were ancillary. There is no direct challenge to the contract in this case. The Claimants originally sought to quash the Default Notice, a grievance for which a private law remedy was available. Their other complaints are some distance from the contract. The contractual remedies would have been inadequate because these are essentially public law claims. The decisions were not about whether or not to continue a contract or to change its terms, they were about whether or not abuse had been established and if so what the consequences would be in a number of areas, only one of which was the contract. The Claimants are trying to clear their names from what they see as unfair findings of abuse by West Sussex (but not by the other public agencies concerned) and protect their staff from what they see as unfair referrals to professional bodies. In essence these are public law not contractual concerns.

 

  1. When taken together the factors cumulatively establish sufficient public flavour, as it was put in Weaver, to make the process of investigation and decision a public function distinct from the contractual relationship. So this defence fails.

 

These investigations are hard for a Local Authority. They have a duty of care to the people placed in these homes, and once the police conclude their investigation, there is obviously a time pressure to take appropriate safeguarding action. But in a case such as this, where the police were investigating from April to December, having a meeting with only one working day for the organisation under investigation to respond to the report was always going to be problematic.  I suspect in retrospect  (a place where wisdom comes easily) there is regret in not having accepted the request to adjourn for 10 days.

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We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

Posted on July 23, 2012 by suesspiciousminds

 An analysis of the Government’s consultation on placement of siblings and contact post placement

 

The Government, as is their usual way, published consultation documents on a Saturday, and gave everyone just over a month to respond. [This is becoming closer and closer to Douglas Adam’s jaded viewpoint on planning consultations]

 

” But Mr Dent, the plans have been available in the local planning office for the last nine months.”

“Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn’t exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything.”

“But the plans were on display …”

“On display? I eventually had to go down to the cellar to find them.”

“That’s the display department.”

“With a flashlight.”

“Ah, well the lights had probably gone.”

“So had the stairs.”

“But look, you found the notice didn’t you?”

“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard‘

 

But I digress…

The consultation on sibling placements can be found here:-

Click to access placing%20children%20in%20sibling%20groups%20for%20adoption%20a%20call%20for%20views.pdf

and the one on contact arrangements for children can be found here:-

Click to access contact%20arrangements%20for%20children%20a%20call%20for%20views.pdf

and Martin Narey’s interview about these consultations is here:-

http://media.education.gov.uk/assets/files/doc/m/martin%20narey%20transcript%20on%20adoption.doc

Now, if you were in two minds about whether you wanted to be involved in yet another consultation document, particularly where minds have probably already been made up, as is traditional with government consultations, let me take you to Martin Narey’s interview and his views about the benefits of contact :-

 

The evidence shows, actually, that contact does not necessarily encourage reconciliation with the birth family. More broadly, the evidence is mixed. I think the most famous piece of research is from Mackaskill, which showed that contact was of benefit to children in 12%, and had positive and negative aspects in more than 50% of cases, but had a very negative effect on the child in 25% of cases. In short, contact is more likely to be damaging than beneficial to a child. The key is to make a decision on each individual case. My view, and this is a view on which Ministers have yet to make a decision, is that we’ve got to look carefully at the presumption in the 1989 Children’s Act, which says that local authorities must endeavour to promote contact between a child in care and their birth family.

Now before people are alarmed, I am not suggesting that in the overwhelming number of cases when a child first comes into care that there won’t be contact. It would be ridiculous to suggest so. But we just need to make sure that on every occasion, we grant contact because it is in the interests of the child. That’s the absolute, exclusive priority we have and sometimes, practitioners have told me frequently, we make decisions on contact which aren’t in the interests of the child. Sometimes that’s about the amount of contact. I have met so many practitioners who are, the word I would use carefully, is ‘horrified’, they are horrified at the amount of contact that infants have to undergo. Sometimes having contact every day of the week, two or more hours, preceded and followed by a long journey across town, it’s traumatic for them.

If you disagree with that, and I suspect there may be people on every single side of the family justice system who DO disagree, you’re going to need to say so, otherwise some important things are going to flow from this.

[I have little doubt that for some children, contact is bloody awful, but I think it is incumbent on the LA and the Court to determine that with evidence contact is not in a particular child’s interests, rather than any shift about the general presumption that contact is a good thing]

I actually think, to let you know that I’m not just knee-jerk against any idea of change, that the consultation document on sibling placements talks a lot of sense.

Whilst in an ideal world, we might want to keep siblings together if they can’t go home (and I have blogged about this before), that simply isn’t the world we are living in. We are walking into a  McDonalds with a shiny pound coin in hand  and expecting to have a Michelin starred experience.

Julie Selwyn (2010)7 found that sibling groups of three or more children were placed, on average, a year later than most children who are placed for adoption in England.8 Analysis of prospective adopters and children on the national Adoption Register shows few adopters willing to consider adopting more than one child at a time. This means that children in sibling groups are less likely to find a secure future home quickly, and may suffer harm as a result.

And This is only part of the picture. It is also genuinely difficult to find adopters who will take sibling groups of three children or more. The British Association for Adoption and Fostering (BAAF) has indicated that as demand for potential adopters increases, some are pulling back from the more challenging children, including sibling groups. Data from the Adoption Register in 2011/12 shows that of the 2536 children referred to the Register from England, 1318 (52%) were single children placements; there were 349 groups of two siblings, 71 groups of three siblings, four groups of four siblings, and there was one group of five siblings. There were 270 people on the register able to adopt groups of 2 children and 21 able to consider groups of 3 children. Some adopters do go on to adopt a sibling born later thus achieving placement of siblings.

 

Yes, you read that right. There are 21 carers on the national register who have expressed an interest in adopting a sibling group of 3 or more. I think I could genuinely take half of those with just my current batch of cases; and I’m just a small portion of one Local Authority.

The consultation document wants to tackle it from both sides, what might be deemed ‘supply’ and ‘demand’ – how can we attract more potential carers who are amenable to sibling groups, how can we convert more people who want to adopt 1 child into adopting a larger group, and is it sensible to cut down the amount of cases that are coming into the system hoping for an adoptive placement of 3 siblings together when that is just unfeasible? And part of that is tackling the general assumption that sibling groups should always be placed together and getting into the nuts and bolts of whether that is right for this family.

Narey talks about the distance between the numbers of children looking for sibling placements and the number of placements available as ‘a gulf’ and I absolutely agree.

The document identifies the problems and throws the doors open to sensible solutions and practical proposals – it seems to me to be a genuine attempt at consultation and to ventilate this very difficult issue with a view to coming up with some ideas. It doesn’t seem to start with a fixed plan with which people are invited to enthusiastically agree or else shut the hell up.

The contact consultation document, I respectfully suggest, is a little further down the route of “we have already got a good idea what we want to do, but we’re obliged to consult with the great unwashed about it”

This is up front and centre at paragraph 3 of the consultation:-

The Government thinks that it is time to review practice and the law relating to contact to make sure that arrangements are always driven by a thorough assessment of what is in the child’s best interests. There is growing concern that contact arrangements are being made that are inappropriate for the child, badly planned and badly monitored. These are being driven by view that contact should take place, rather than on the basis of the individual needs, circumstances, views and wishes of the child. As the number of children in care rises, so the burden and negative impact of poor contact becomes more pressing.

 

Which even I, as a hard-bitten Local Authority hack, driven to distraction about fights over contact taking place five days a week when the parent then only turns up for two; think is somewhat less than neutral in a consultation document  and smacks of an opinion already being formed.

Contact for infants can be particularly problematic. There is pressing evidence that high intensity contact for this group can be stressful and disruptive. Of particular concern is the exposure to multiple carers and the constant disruption to a daily routine. Contact for infants may be arranged for several hours a day for three to five (or more) days a week. Kenrick (2009)14 studied the effect of contact on infants involved in Coram’s concurrent planning project. The study showed that the babies displayed distress before, during and following contact sessions, and that the requirement for frequent contact was experienced as disruptive by the child and carers. The concurrent carers who reported distress and anxiety, described the need for a resting or recovery time of 24 hours to “settle” the child, something which is impossible with such frequent contact arrangements. For infants who have been abused or neglected, the distress from frequent and unsatisfactory contact can make it more difficult for them to recover.

 

I don’t necessarily disagree with this; it’s been a schism between what the family justice system thinks is right level of contact for infants and what the research thinks is right for some time, and it is worth trying to thrash this out, to come to a sensible balance between preserving/building a relationship between child and parent and stability for the child. I think we have probably drifted too far one way on that, and I welcome an attempt to actually pull together the evidence and come to a proper conclusion about where the welfare paramountcy principle should stand on contact for infants (on the Justice Munby end of the scales – five times per week of four-five hours, or on the Kenrick end of the scales, or somewhere between). I just wish it had been couched as a debate, rather than a declaration of war.

Statutory guidance can be strengthened to ensure more consideration is particularly given to the purpose of contact for infants. Ensuring that arrangements are appropriate to their age and stage of development and they are not, for example, subject to long journeys. Each case will need to be decided on an individual basis, however we should like to propose that a good starting point might be that children under two are rarely exposed to contact more than 2 or 3 times a week and for sessions of no more than 2 hours

 

I wonder if the Government have thought through the inevitable consequence of this that there will be a far greater clamour from parents, Guardians and Courts for less separations (since the impact of separation appears far greater with 4-6 hours contact a week than it is with 20-25 hours contact per week) and thus a huge increase in risks being managed at home, parent and baby placements and residential assessments. I’ve spoken before about the law of unintended consequences and I think this is a massive one.

 

22. We also plan to look again at the duties on local authorities in primary legislation to allow children in care reasonable contact with their birth parents and to promote contact for looked after children. We think that these duties may encourage a focus on the existence and frequency of contact arrangements, rather than on whether they safeguard and promote the welfare of the child. This could remove the perceived presumption of contact in all cases and help local authorities to take a case-by-case decision about the best contact arrangements for the individual child. We recognise that these duties were introduced because some local authorities did not previously make adequate arrangements for contact, and we do not want to see a return to contact being exceptional rather than the norm.

23. Alternatively we could look at replacing the duties with a new requirement that local authorities consider contact arrangements that have a clear purpose documented in the child’s care plan and are in the child’s best interests. The intention would be to ensure that arrangements are made in the child’s best interests, taking account of views and wishes of all concerned, and aligned with the longer term plans for the child.

And on post-Placement contact

36. We need to ensure that contact arrangements change as a child’s circumstances change and that they are consistent with plans for the child’s future. We also want to discourage the practice of making informal arrangements or ‘deals’ outside of the court process. In order that contact arrangements are, and remain, fit for purpose, we could look at existing provisions for reviewing contact and ensure a formal review and decision making process takes place at each of the points set out above. We could look at existing guidance and regulations and consider where and how these can be strengthened.

37. There could be particular scope for this at the point of placement order. At present, there is no presumption for or against contact with the birth family at this stage. We could introduce a presumption of ‘no contact’ unless the local authority is satisfied that contact would be in the best interests of the child. For example, this might be the case where an older child, with the backing of his or her adoptive parents, expresses a wish to meet his or her birth parents.

And specifically on post-adoption contact

 

49. One option may be to provide that the court can on application for an adoption order make an order for no contact. This would give adoptive parents recourse where informal contact arrangements were causing difficulties, but this would only take effect once an adoption order has been made. Post-adoption contact should be exceptional but in a minority of cases it may be appropriate, for example in the case of an older child. What should govern such contact arrangements is what is in the best interests of the child.

50. In addition to introducing a “no contact” order, we could amend legislation to create a new more demanding ‘permission filter’. This would raise the bar for any birth parent to make an application for a contact order. Criteria for granting permission already exists therefore we could explore how this might be strengthened.

If you don’t speak up, you can’t complain and whinge when this agenda gets pushed through into legislation and binding guidance. You have until the 31st August. Good job nobody who will want to reply would be on holiday during any of that time…

Comments Off on We are family, I’ve got all my sisters with me… (or “Beware of the leopard” )

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