Category Archives: family justice modernisation

“That’s all we do, isn’t it? Look at things and try new rules?”

Posted on August 8, 2012 by suesspiciousminds

–         Ernest Hemingway (nearly) 

A consideration of the private members bill about Family Justice

 

 

I came across John Hemming MP’s draft family justice bill, which will be put forward as a result of him winning the ballot to put forward a Private Members Bill, and felt it was appropriate to write about it.

 

Not because it will necessarily become law  (very, very few Private Members Bills make it to Acts, because they don’t have the force of the parties and whips behind them)

 

Nor because I want to coruscate or ridicule it.

 

But because, at a time when Family Justice Review is dominating the thoughts and actions of professionals, it seemed to me appropriate to look at how one of the staunchest critics of the current system would want to change it. 

 

Just because someone has different and firm views with which I disagree  (in a nutshell, I think miscarriages of justice in family law are tragic but rare, and John Hemming thinks they are relatively commonplace – we’re entitled to have different views on that) , doesn’t mean that their ideas and suggestions are without merit, and I particularly wanted to see how John Hemming would want family law to change.  It seemed to me that his views would be a damn good place to start in working out what changes could be achievable, if one started with a blank sheet of paper.

 

I don’t agree with John Hemming on everything, but I applaud him without doubt for his sincere desire to make family justice better for those who are dragged into using it, and it is substantially easier to knock something down than construct it, so he earns my respect for putting together some proposals.

 

 

If you don’t listen to people who have had the roughest end of family justice, how can you genuinely reform it? I don’t say that you should slavishly follow their views, but the real voiceless in the Norgrove consideration of family law were the parents.

 

I doubt that many people, with the deluge of material we have to read, will have read the draft bill, but I found it genuinely interesting.

 

[Quick sidebar, the title quote above is actually “That’s all we do, isn’t it? Look at things and try new drinks”  and one that crops up regularly in a book I’ve just been reading called Boozehound, which is about cocktails and is fantastic. I particularly like the author for his insistence that vermouth is a crucial part of a martini, and all this macho “very dry, like open a bottle of vermouth in the next room” nonsense is actually just arising from people like Churchill and Hemingway who were functioning alcoholics and just drinking a very very cold glass of gin.  If you want to try the book, http://www.amazon.co.uk/Boozehound-Trail-Obscure-Overrated-Spirits/dp/1580082882/ref=sr_1_1?ie=UTF8&qid=1344446493&sr=8-1 ] 

 

 

Anyway, you can find the draft bill here:-

 

http://www.john.hemming.name/pmb/family_justice_bill_draft_bill.pdf

 

 

There were lots of things I really liked in this.  As a lawyer, there were lots of drafting issues I’d tighten up, and it is clearly a work in progress but the proposals contain good ideas. Drafting is the easy bit, coming up with ideas is the difficult part.

 

 (I would baulk at the idea that any party to court proceedings can bring up to 5 people in to court to support them, but think formally allowing people to be able to bring in some support is not a bad idea  – the Court would need to be able to control behaviour so that it did not descend into Jeremy Kyle territory, but wouldn’t it be better to have a default position that people can bring in a friend or relative to support them, and only exclude them if they misbehave, rather than assuming that they are inevitably going to be trouble-causers?)

 

 

1.  The proposals about grandparents  –  clause 2   

 

(3) Grandparents or siblings of parents, who are not parties to a case, shall

(a) be able to participate in that part of any proceedings which involves considering whether or not childrenshould be placed with them; and such people who have had care of children should not face detailedassessment unless their children have been subject to a child protection plan or care proceedings; and

(b) in the case of grandparents be permitted to participate in proceedings if they have had long term involvement with their grandchildren and have information which will be helpful to the outcome of the case.

(4) Grandparents shall be permitted to have reasonable direct and indirect contact with their grandchildren without this contact being supervised unless it is not in the interest of the welfare of the child

 

[I suspect that as a local authority lawyer, I ought to be against the idea of not assessing grandparents in detail, but I actually think that’s a proposal that’s worthy of consideration. If the grandparents don’t have visible or historical problems, shouldn’t we start assuming that they’re decent people? Why not speed up and slim down assessments by working on the premise that grandparents are prima facie a good thing, unless there’s evidence to the contrary?]

 

2. The addition of a principle that children in care should be placed near their family if possible – clause 2(5)

 

(5) Children not placed with their family should be placed as close as is practicable to their home authority.

 

[Though I would add, unless this would place them or the security of their placement at risk, I think it is an important and worthwhile thing to be included in any new Act]

 

3. The consideration of the conflict that necessarily exists between the Local Authority being responsible for providing for a child in care and at the same time investigating allegations of abuse that occur whilst in care.  The Bill suggests that Parliament should set up an independent body to investigate complaints of abuse to children in care. I think there’s no money for that, but it doesn’t make it a bad idea.

 

4. Establishing that being, or having been in care during your childhood should be a category covered by the Equality Act. 

 

 

5. Proposed amendment to the Adoption and Children Act

 

 4. Amendment of the Children and Adoption Act 2002

After section 52(1) of the 2002 Act there shall be inserted

“(1A) Where a judge is of the opinion that parental consent may be dispensed with pursuant to subsection (1) (b) he must

(a) in his judgement explain how he has considered the requirement of section 1 (4) of this Act; and

(b) then only make an order placing a child in the care of a local authority after considering whether it is possible and in the interest of the welfare of the child to place the child with one of his relatives.”

 

I think every judge I’ve ever been before already does that, but I can’t see that it hurts to have it as a statutory requirement. If there’s doubt that it is being done, then make it mandatory.

 

 

6. A statutory duty for the LA to act so that the child’s welfare is paramount

 

6. Children and Parents: Duties of local authorities and other bodies

(1) When a local authority or other body carries out any functions or makes any decisions in connection with the upbringing of a child, the child’s welfare shall be the paramount consideration.

(2) In respect of subsection (1), the local authority or other body must act on the presumption that the child’s welfare is best served through having access to and contact with both parents and grandparents sufficient to enable him to have a meaningful relationship with both parents and grandparents unless in the opinion of the court such contact is not in the interests of the welfare of the child and that information about the child should be provided to both parents.

 

 

Again, I think that most Local Authorities do this as a matter of good practice, but I would have no problem with this being enacted.

 

 

7. Greater scrutiny for the office of the Official Solicitor

 

 

 

Where I start diverting is :-

 

 

The right of all parties to proceedings to record them  (I see the purpose of it, but think it would be misused massively.)

 

The right of a person who has been deemed to lack litigation capacity to appeal this and to appoint a person of their choice to assist them  (again, I see where the idea of this is going, but the difficulty is that if you are establishing that someone doesn’t have capacity, they don’t then have capacity to make such a decision).  

 

This was the very issue that got John Hemming into hot water with Mr Justice Wall in  RP v (1) NOTTINGHAM CITY COUNCIL (2) OFFICIAL SOLICITOR (2008) [2008] EWCA Civ 462   (though he was clearly making an important point in that case about a person who was denied the opportunity to fight her case because she was vulnerable)

 

I do see where John Hemming is coming from with this – it doesn’t sit comfortably with me when a parent who lacks capacity is saying that they want their children back, but aren’t able to run that case because the Official Solicitor takes the view that they aren’t able to.  That requires a bigger consideration of litigation capacity, however. I would not be against a policy whereby the day to day conduct of litigation is run by the O/S, but the parent is able to communicate to the Court through their solicitor or counsel what their wishes are on the big issues of placement and contact.

 The bill’s proposal for a tweaked test on capacity seems, to me, not unreasonable. People should be allowed to make bad, foolish or downright stupid decisions, providing they are not causing themselves harm in doing so. If the decisions fall within a range of reasonable possible decisions  (i.e it is reasonable to eat salad, or chips, or rice, but not to eat glass) then it seems to me appropriate that a person be allowed to make such decision, even if they would, or could have made a better one

 

13. Ambit of Reasonableness in Capacity

Any person who, in the assessment of their capacity to make a decision, proposes to make a decision that is within the ambit of possible reasonable choices shall be deemed to have capacity for the purposes of that decision notwithstanding that they would otherwise be found incapacitous, unless it would on balance of probabilities cause them serious harm, whether immediately or in the future.

 

 

I have to say, I was surprised, although I strove hard to have an open mind when reading the draft bill, how much of it I found sensible or unexceptional. I thought it would go further, and I almost wish that it had.  If this is all that it takes to placate one of the staunchest critics of the family justice system, I would be prepared (were I an MP, to vote for very much of it, and object to relatively little)

 

I actually wish John Hemming luck with it.

 

It probably would produce a fairer family justice system than the as yet unpublished bill that I suspect is heading our way, which will make a mockery of the sentiment that “Finality is a good thing, but justice is a better one”

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some titbits from the Justice Ryder talk

Posted on July 31, 2012 by suesspiciousminds

 

A few pieces of information that weren’t necessarily known before, that emerged from a talk he kindly gave in my neck of the woods.  I arrived late, so if I missed any announcement about Chatham House rules, I’ll obviously take this down.

 

1. There is a judicial review lodged about the LSC and whether they were reasonable in a particular case in refusing funding. From the very little that was given away, it seems to be a case involving private law, and parents who could not afford an assessment deemed important by the Court, so the report was commissioned and the costs directed to the Guardian’s public funding certificate. No timescales for when this will be heard.  The Judge was obviously very circumspect, and appropriately so, and did not discuss any detail or view of the case, but merely passing on that such a case was in the pipeline.

 

2. In drug and alcohol cases where longer testing is required, they might be able to exceed the 26 week limit -BUT it would be after the Court had inspected the evidence and considered that the timetable for THAT child warranted the case going beyond 26 weeks.

 

3. They have been discussing what to do with family and friends who present as viable but come forward very late in the proceedings; one possibility being actively considered is whether the Care Order be made (with the Court effectively determining that the child won’t live with parents)  and then the Placement Order/SGO/residence application be ‘uncoupled’ from the care proceedings and dealt with after assessments are done.

 

4. The judiciary are alive to the idea that when Parliament constructs the statutory framework for 26 week time cap, the exceptions need to not be based solely on complexity – the particular example given was of a first time teenage mother who just needs a longer period of monitoring and testing and learning, and whilst that wouldn’t be complex, there could well be a need for the case to go beyond 26 weeks. The suggestion was that the Court would need to consider and record on the orders why the timescale for that child went beyond 26 weeks. In order to present a balanced picture to the legislators, Justice Ryder was suggesting that Courts should ideally be recording that sort of thing on orders now, to build up a proper framework of what sort of cases genuinely need more time.

 

5. It did sound like the LSC might be having second thoughts about the Pandora’s Box of prior authority, and the senior judiciary are talking with them about possible solutions.

 

It was an interesting talk, delivered well, all questions given proper answers,  and even my cynicism wavered slightly. It does honestly sound as though they mean it this time – change is a’coming.

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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…

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Help, it’s the care-hair bunch!

Posted on June 18, 2012 by suesspiciousminds

 

 

I was idly pondering today the suggestion by Mr Justice Ryder’s Family justice modernisation group that some agreed research on some key topics be prepared, in order to have some basic key principles agreed with some research that the profession can have confidence in.

 

Here’s a suggestion for one – are hair-strand tests for alcohol and drug misuse  (as they presently exist) sufficiently accurate for the court to rely on, or is the desire to have something that proves for definite whether a clandestine and unwanted activity is taking place racing ahead of what the science can reliably achieve at this time?

 

I don’t think I’m madly atypicical for a Local Authority care lawyer, nor is my authority madly atypical.  I comfortably do 15 hair-strand tests per year (all of these figures are going to be under-estimates, so the final figure I come up with is even more of an under-estimate).  I have colleagues who do about the same amount – I’ll under-estimate that as SIX, although it is more.

 

Let’s say that my authority does 75 hair strand tests per year.  Now, although the costs of that are divided between the Local Authority and the publicly funded parties, it is all ultimately taxpayers money.  The cost of a hair-strand test varies on how many months, and how many substances you want to check for, but let’s say £1,000 is about average (again, under-estimating)

 

£75,000 per year, for one Local Authority.

 

My quick unscientific count of counties in England is 37, each of whom has at least one LA who deals with care proceedings. Let’s assume (again, underestimating) that we add another 13 LA’s  (London, Manchester and those metropolitan boroughs around the outskirts of Birmingham easily give you more than 13).

 

So, fifty Local Authorities running care proceedings, and each year they spend (together with the LSC) £75,000 on hair-strand testing.

 

That’s £3,750,000 per year.

 

I remind you, that this is an under-estimate, but on that under-estimate, the taxpayer is spending THREE and THREE-QUARTERS OF A MILLION POUNDS on hair-strand testing. And the only times that the Court have really grappled with the issue of how accurate this science is, it hasn’t been all that compelling. *  THREE and THREE-QUARTERS OF A MILLION POUNDS each year.

 

[*RICHMOND LONDON BOROUGH COUNCIL v (1) B (2) W (3) B (4&5) CB & CB (BY THEIR CHILDREN’S GUARDIAN) (2010) [2010] EWHC 2903 (Fam)

There was a need for considerable caution when hair tests were being interpreted and relied upon, both generally and particularly in isolation. When used, hair tests should be used only as part of the evidential picture, although findings of very high levels might form a significant part of the picture. Because of the respective strengths and weaknesses of the two tests, both tests should be used if hair tests were to be undertaken. The tests could produce conflicting results. The results should be used only for the purposes of determining whether they were consistent with excessive alcohol consumption by use of the cut-off levels. If the concentration found was below those levels, the results would be consistent with abstinence or social drinking; if it was above, the results would be consistent with excessive alcohol consumption. Further, at the cut-off levels, evidence suggested that 10 per cent of results would be false positives. The tests could not establish whether a person had been abstinent: non-detection on either test did not mean that the subject had not consumed alcohol; detection on either test below the cut-off levels did not mean that they had; and neither test was designed to establish abstinence or social drinking. The cut-off levels for both tests was for the proximal 3cm segment of hair. No levels had been established for 1cm segments, nor was there sufficient published data on testing such segments to enable the validity of such tests to be established. Accordingly, any evidence based on the testing of 1cm segments was unlikely to be sufficient to support conclusions as to the level of alcohol consumption. Further, in the absence of any peer reviewed and agreed cut-off between abstinence and social drinking, a court would need specific justification before accepting any such evidence]

 

and I’m also aware of another High Court case involving drugs which has not been reported, which was not quite as bleak as Richmond, but wasn’t a glowing endorsement either.

 

I am not a scientist – though in my younger days, I had aspirations to become one; so one of the things I understand is the concept of “false positives” and “false negatives”.  And it is absolutely key to determing how reliable these tests are, to know exactly what the rate of both is.

 

For those who aren’t science geeks, a false positive is where the test pops up an answer that says you used drugs/alcohol when you didn’t, and a false negative is where the test pops up an answer that says you are clean, when you had in fact used drugs/alcohol.

 

In terms of alcohol, the High Court established that the rate of false positives and false negatives with hair strand testing were each around 10%. [I have personal experience of asking the question of hair-strand testers what their rates of false positives and false negatives are, and haven’t had a satisfactory answer to date. The companies understandably don’t want, given that they are in competition, to give away commercially sensitive information like that].   I believe those figures were taken from studies where a proper blind control was used, of people known to be teetotal, submitting hair-strand tests and the false positive rate was around 10% there – I think they were teetotal Scandanavian students.

 

Okay, that’s fine – if there’s only a 10% risk that the test shows a false positive, that means they are 90% accurate, which for the purposes of family proceedings means that for any invidual test that shows the presence of drugs or alcohol, it is massively MORE LIKELY THAN NOT to be accurate. But remember the numbers we’re using –  an underestimated quick calculation shows 3,750 per year.  Any single case in that amount that produces a false positive has a hugely detrimental impact on the poor parent who was statistically unlikely to be telling the truth when they say the test was wrong but WERE in this individual case, because SOME of those tests will produce a false positive.

[I’m not going to fall into the trap of suggesting that it would be 10% of 3,750 – statistics and probability work in a more complicated way than that, and it would be easy to get caught out by approaching it in a common-sense way – cough, Professor Mea- cough.  If you ever want to feel like you no longer have any grasp of common sense, working out some problems on statistics and probabilities is a really good way to make you feel that nothing is real or as it seems  – for example, that if you put 23 people in a room together, it is more likely than not that two of them will have the same birthday, even though there are 365 days in a year, and you’d think that you’d need 180 people to get those odds]

 

Whilst the plural of anecdote is not data, I am fairly sure that any family lawyer reading this can think of several examples from their caseload fairly immediately, of parents who admitted drug use before the results came back, but they came back negative, or of parents who got negative tests but later admitted significant use. Those are the false negatives, and when deciding whether a parent has conquered their drug problem are important. The Court relying on a false negative can be just as bad as relying on a false positive. (Of course, the false negatives are the ones that stick in our mind, because we have confirmation from the admissions that the test is wrong, whereas a denial that the results are true doesn’t confirm to us whether the test is wrong, or the subject is lying)

 

My point is, the taxpayer is spending a significant amount of money each year on hair-strand tests – the outcome of these tests can be pivotal to the decisions the Court makes about the future of children. It would probably be worth spending a few thousand on research to establish, categorically whether the money is being well-spent.

 

To be provocative – here’s another scientific method for establishing whether someone has taken drugs, and it is based on science, and the accuracy rate is said to be higher than 90% *, and would be substantially cheaper. You hook the person up to a polygraph (or lie-detector, to use the common name) and ask them.   I suspect that you are now recoiling from the idea of lie-detector evidence being used in family courts and would hate to see it used.

 

And I’m being provocative of course, because I feel exactly the same, but it is worth contemplating why it provokes that unease, disquiet, even revulsion.  Is it fundamentally because, despite all scientific evidence to the contrary, we believe that human beings are good at spotting when someone is lying and that the best judge of whether someone is lying is… well, a Judge? Is it because a polygraph machine just summons up old-fashioned science-as-magic imagery, like mesmerism or seances, or is my own personal inner-confidence that I could beat a lie-detector test subconsciously shared by many of us so that we inherently doubt its accuracy, or do we just plain not trust looking at a bunch of lines on a piece of graph paper and calling a man a liar as a result of it?

 

*caveat – the accuracy of lie-detector tests is probably one of the most controversial debates in the american justice system, and the accuracy is said to be very high by people who support it, and very poor by people who are against it… And bizarrely, the one thing both groups seem to agree on is that the lie-detector is better at spotting when a guilty person is lying than when an innocent person  is telling the truth.    So, is our in-built prejudice based on the “fact” that they’re just not very good?

 

I’d like to see some research done on methods of testing for drug/alcohol misuse, with some proper blind studies (where there are samples taken from people who are unequivocally known to be users of substances, or categorically abstinent, and the people doing the testing have no idea which – and ideally neither do the people sending the samples) and I think a provocative, but interesting  measure would be whether the science of hair-strand testing proves to be more accurate than lie-detectors… or indeed someone just looking at a person closely while they plead that they’re not a drug-user…

 

By the way, you probably didn’t know that there has already been a pilot study about polygraph use in the UK, and legislation permitting its use – on assessing the risk of sex offenders in the West Midlands.  (The Polygraph Rules 2009 if you’re sceptical)    There’s also a very weird bit of research showing that when sex offenders were hooked up to an entirely bogus lie-detector, they were more honest about their offending as a result simply by the effect of believing that the machine WOULD reveal that they were lying, they became more honest.     http://www.springerlink.com/content/dm51518228jk8208/

 

I strongly suspect that proper scientific research would show that hair-strand testing for drugs IS reliable enough for family proceedings, but might assist us with how accurate it is, and the circumstances in which a second opinion or second test should be carried out  (not that there would be time in 26 week model for anyone to challenge the outcome) and the Court should KNOW what the false positive and false negative rates are. I am far less confident about alcohol testing – everything I’ve read and heard suggests that the method will eventually be refined and reliable but we’re not quite there yet.  But my overall point is that it shouldn’t be for me, or the Judge in a case to weigh up how confident one can be in the testing, we should have the research  (done by scientists who have no financial stake in the outcome) to tell us how reliable these tests are, and thus whether these tests are great value for money, or a waste of time, or somewhere in the middle.

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Finally – resolution on prior authority!!!! (sort of, but not really)

Posted on May 31, 2012 by suesspiciousminds

Our beloved President (and honestly, no sarcasm here, I am delighted!) has finally tackled the Prior Authority issue.

http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

In DS & Ors (Children) 2012.     (Am a little sad that I didn’t get to be the one who got to run the case, having expended quite some time on the issue, but delighted that it is finally gripped)

Interestingly, the President takes a different view to me on whether the LSC have law on their side here.

Para 38 For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

If I recall correctly, both Calderdale and Lambeth (the cases I think mean that the Court takes precedence over the LSC internal policies) are both High Court, so the President is not bound by them, and distinguishes them in any event by saying that the Statutory Instrument which sets out how the LSC have capped expert fees is binding.  (In my humble opinion, it would be binding, had the draftsmen remembered to put something into the SI that said that it was binding on the Courts, but such is life).  A closer inspection of this authority shows that Justice Wall specifically refers to Calderdale on the issue of splitting costs, so I am certain that the argument that the Court pushes the LSC around, not vice versa, is, I’m afraid over. And we lost.

The law, as it stands then, is that the LSC DO have the power to bind the Court, and Mr Justice Wall suggests that the remedy is a judicial review if the LSC are acting in a Wednesbury unreasonable way. Presumably, the LA as a body with locus standi, could launch that JR if the LSC decision was delaying a case, because heaven knows the last thing a publicly-funded solicitor who depends on the LSC to process claims and write cheques wants to do is hack off the paymaster.

Here is some very helpful concrete guidance – as much of it places onerous tasks on the Judge/Magistrates if granting approval for an expert, expect to have a harder task over the next few weeks in getting an expert past the Court.

Guidance

    1. In all the circumstances of this case, therefore, I feel able to offer the following general guidance:-

 

i) The words “the cost thereof is deemed to be a necessary and proper disbursement on [a named individual’s] public funding certificate” (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind the LSC or, for that matter anybody else. In addition, there must be doubt about the court’s power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.

ii) The test for expert evidence will shortly import the word “necessary”. The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word “necessary” for “reasonably required” and there will be a new Practice Direction.

iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say – if it is the case and the hard pressed Tribunal with a long list has had the time – that it has read all the (relevant) papers.

iv) If the court takes the view that an expert’s report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge’s approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.

v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.

vi) “Reasons” in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 of the Funding Order

vii) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.

viii) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert’s contract is with the solicitor, and if he or she does not recover the expert’s costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.

ix) Similar considerations to those set out above apply to any challenge to the LSC’s ruling.

x) If a case is urgent, it should be so marked and the reasons for its urgency explained.

xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children’s Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and “user friendly”. Practitioners should look out, in due course, for the amendments.

And then a suggested form of wording for orders (you will note that this is a LOT longer at present, and the President stresses that all of this should be prefaced by a short judgment as to why the expert is required, and at the minimum a clear preamble that sets out why the judicial decision has been made)

Coda

    1. A suggested form of order, depending on the facts of the individual case, could be in the following terms: –

 

a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.

b) This case is exceptional on its facts.

c) The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.

d) The court considers X’s hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.

e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.

f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren’s) timescale(s).

  1. Even such an order (which will need, of course, to be adapted to the facts of the individual case) should be buttressed by reasons as set out in the guidance which I have attempted to give.

There’s a very interesting addendum to the judgment, where the LSC submitted some data to the Court. Here are the figures on applications for prior authorities :-

Nov 2011  – 216

Dec 2011 – 492

Jan 2012 – 784

Feb 2012 – 1140

Mar 2012 – 1840

Apr 2012 1855

I wonder why the numbers spiked so – might it be because the LSC started rejecting claims left right and centre, leaving solicitors holding the baby and being out of pocket and thus deciding never to get burned like that again?

Laughably, they also claim to be processing prior authority applications in between 3 and 8 days.  (Perhaps, if their definition of a Day is the time it takes Jupiter to orbit the sun)

So, where are we?  I suspect, still waiting for the judicial review.  The white flag has been waved by the Courts as to whether they or the LSC are in charge of assessments, so what Justice Wall has done here is set out a clear framework in advance for prior authority applications to be accompanied  by chapter and verse on why the Court has decided that the assessment is necessary and the costs appropriate. That paves the way, should the LSC act capriciously (as if they ever would, quell my scepticism) for a judicial review.

If you’re an Independent Social Worker, this case is really, really bad news, I’m afraid. The Courts are not going to do battle with the LSC in any care case as to the ludicrous £30 per hour cap that was pulled out of thin air. It will have to be a judicial review based on the policy being unreasonable and having been done without an Impact assessment.  (And I think the clock has chimed on the time-limit for such an application – unless the applicant (Nagalro, or BASW presumably) argues that it was unclear until this decision that the intention was to bind the courts, or that social workers doing risk assessments would not get the £63 per hour that the SI suggests)

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Madame Le Guillotine and the law of unintended consequences

Posted on May 31, 2012 by suesspiciousminds

I was reading Pink Tape today  http://pinktape.co.uk/family-justice-review/i-suppose-i-should-blog-sommat/  and had a horrible moment of self-recognition. I try to avoid introspection wherever possible, because it allows me to maintain my massive inner belief that with a bit of airbrushing I could look like Brad Pitt, and with a bit of extra prep time, I could use honeyed words to charm the very birds out of the trees just like the silks I most admire, but reality crashed through that today, spoiling my internal sense that all must be right with the world whilst I am still a presence in it.

The thrust of Pink Tape was, there’s no point merely grumbling about the FJR and the 26 weeks that is coming at us like the meeting of minds between the prow of the Titanic and the sharp bit of that iceberg (I don’t know, in this analogy which is the iceberg and which the boat – part of me suspects that the huge power of the system for inertia and ignoring the things we don’t like mean that we may well see off the FJR just as we saw off the Protocol and the PLO and those horrid Practice Directions by just agreeing to pretend they don’t exist), but to speak up, lest we find ourselves pinning up that “First they came for the Jews” quotation on our cubicle walls. (Mine, by the way, are in a delicate shade somewhere between mushroom, and fawn)

So, here is my fourpennorth.

The 26 week period to resolve care proceedings, particularly if it is a cap, or guillotine, rather than an aspiration or target, won’t work. (It wouldn’t work if it was an aspiration or target, EITHER, but for different reasons).

I can’t see it surviving contact with the Court of Appeal, and if it does, I certainly can’t see if surviving contact with the ECHR.

Even if you put a new section in the Children Act 1989, that says “Section 1(2) shall now read “In any proceedings in which any question with respect to the upbringing of a child arises, the Court shall ensure that the case is dealt with within 26 weeks of the proceedings being issued save for exceptional cases” , every single case will just be exceptional.

And if you snip out ‘save for exceptional cases’, then what you have is s1(2) of the Act being potentially in conflict with s1(1). And as s1(1) not only comes first, but says expressly that the child’s welfare is the paramount consideration, that will trump the revised s1(2) .

The Court would HAVE to retain the power to decide that in an individual case, the welfare of the child requires that the proceedings continue a little longer.

And if they have that power, they will use it.

And if they use it on Case A, how is it right to fail to use it on Case B, which is the same factual issue? And what about Case C, which is analogous, or Case D, which is quite a bit like Case C (though nothing at all like Case A)

So, I think insisting on having the sharp-cut off Guillotine regardless of welfare is unlawful even if the law is changed (and there’s a huge difference between a general principle that delay is harmful and should be avoided, and removing the discretion to decide whether the harm of delay is outweighed by the children’s best interests and saying “one size fits all”)

And if it isn’t a sharp-cut off Guillotine, it will just be ignored. Just as the major impact of implementing the 40 week target in the Protocol and the PLO was to move the average duration of cases from BELOW 40 weeks to 25% OVER 40 weeks.

 Now, the law of unintended consequences. I’m fairly sure that the Government don’t intend the revised Family Justice system to result in more children being in care, or more children being subject to Care Orders or there being far more applications to Court to be dealt with, but that’s what the law of unintended consequences is all about. Stuff you didn’t mean to bring about when you did something new and clever, but that happens anyway.

Let’s look at a little example.

“Charlie” is the son of a single mother, father off the scene, no suitable family members. “Charlie” is a newborn baby at the time of issue, and his mother has been a heroin user for ten years. The mother gets legal advice at a Letter Before Action meeting pre-birth, and decides to use her best endeavours to quit heroin. The drug tests are ordered at the first hearing. They arrive (let’s be optimistic) by Week 5. They are clean. Obviously, that only shows that she has been abstinent of heroin for a few weeks, and we need more. So let’s have some more drug tests.

Now, we might get a psychiatric report, or we might have the benefit of the ACCEPTED RESEARCH that Justice Ryder has been mooting. 

 I suspect that  you and I have both read enough psychiatric reports to hazard a guess that either of these things will say :-

(a) Mum has a long-standing problem of heroin use

(b) She says she is committed to being abstinent

(c) She would need to be abstinent in order to care for the child

(d) In judging whether the abstinence will last, a year is a good start, and two years is where you would feel really confident.

 So, mum gets the further drug test, at week 18, that’s clean. She has been abstinent for nearly four months and has evidenced that.

 The Local Authority are about to file their evidence. Everything mum has been asked to do within the proceedings, she has done. She achieved abstinence and maintained it. But the timescales for having confidence about abstinence are still eight months away, and six months beyond the point at which our Family Justice Guillotine says “No, stop now and make a final decision”.

The LA (and the Court) have three possible decisions here, none of them palatable :-

(a) Supervision Order with the child at home, and if the progress doesn’t last, bring the case back to Court, with a brand new application (presumably a brand new 26 weeks) and paying the full Court fee [because the Government rejected that recommendation, made by Laming, Plowden and the FJR that Court fees that mean it costs around £5,000 to seek a Care Order be abolished]

(b) Decide that the mother can’t demonstrate that she can maintain abstinence within the child’s timescales (of course she can’t – because she needs a year, and she’s only allowed six months) and that therefore it has to be adoption. [I can already predict that this option is provoking howls of outrage, and I don’t terribly disagree, but it is an unintended consequence for drugs cases that if you don’t give the Court long enough to conclude that the parent CAN do it, they may have to decide that the parent CAN’T]

(c) Care Order with the child at home, with a care plan that provides for the child to remain at home with mother UNLESS she lapses, in which case the child would be removed and a Placement Order application sought.

 [You may remember, that I said none of them were palatable at the outset]

 Let’s make this a little bit more tricky.

 This time, mother has one lapse, and it comes in the second drug test. So at Week 20, the Court has evidence that she has used heroin once, and once only, during the course of the proceedings.

 Which of those three options do they go for now? What happens if mum needs some medical intervention to achieve abstinence in the first place, so she doesn’t actually become abstinent till Week 12? Which of those three options is the Court supposed to go for?

 In short, in reducing the time for drug or alcohol cases to be determined, has the Government decided to give the benefit of the doubt to the parent, or to take a cautious approach and assume that the parent is more likely than not to relapse during the child’s minority, or to have a fudged position resulting in more children being subject to Care Orders?

That looks to me, whichever way you slice it, to be a political decision, but one that hasn’t been actually made or debated because nobody has realised that this has arisen as a byproduct of deciding that taking less time over care proceedings must be a good thing.

 In deciding that children have to have their future determined by week 26, you inadvertently create a huge problem in those cases which CAN ONLY BE TESTED OVER TIME.    If you don’t test over the time it needs, you are going to either guess wrong or end up with a fudged compromise that massively expands the number of LAC children.

And heaven forbid that if this happens to Charlie in Manchester, it has a different outcome than if it happens to Charlie in Dorset.

Let’s assume it isn’t drugs or alcohol. It is an unsuitable partner. It takes till Week 7 to categorically establish (through a super-quick process of gathering all the information about what an unsuitable person X is, and maybe having a fact-finding hearing about what X did to Charlie. ). Charlie’s parent decides at Week 7 to separate from X. By the time the LA are filing their evidence, Charlie’s parent and X have been separated for three months. By the time of the final hearing, four months.

Is the Court supposed to give the parent the benefit of the doubt there, or assume that the separation won’t last (since they aren’t allowed to extend the hearing to test it) or to have a fudged position whereby the LA have the child at home under a Care Order and a plan that has the child removed if the parent reconciles with X?

Now, what if Charlie’s parent is seen with X at Week 20, and says it was a one-off, a blip? What happens then?

My guess would be, that in a perfect case, where the parent is faultless for the full 26 weeks, the case ends with a Supervision Order. And a significant proportion of those will come back to Court having not worked (as we know now, when parents are tested over a much longer period, a significant proportion of rehabilitations sanctioned by LAs and the Courts break down, and the child suffers further significant harm).

 Thus, the number of proceedings will go up. [Law of unintended consequences]

And in a case where the parent has a blip, and the blip is not really, really early on, Care Order with the fudged (some might say inchoate) care plan of ‘remain at home unless you screw up again, then removal’. So, the number of children who are subject to Care Orders will go up. [Law of unintended consequences]

And in a case where there a couple of blips, which might be ironed out by extending the assessment period (but that’s no longer an option) Care Order and Adoption. So the number of children who are subject to Care Orders and need adoptive placements will go up [Law of unintended consequences]

The cases that won’t have their outcomes affected, of course, are the ones where the parent DOESN’T even TRY to quit heroin, or drugs, or the relationship with X.

But I don’t see any analysis in the FJR or Government’s approach as to what proportion of cases fall into the “Concerns then full engagement” “Concerns with good engagement but blips”  “Concerns, attempts to change but quite a few blips” or  “Concerns that the parent doesn’t engage with at all” categories.

In that case, lacking the key data, how can we really plan?

Anecdotally, I have seen a LOT of cases that looked cast-iron as to the outcomes by week 26 (or even earlier). Some of them go exactly the way you call ‘em. Some don’t. And what’s worse, if you exclude the utterly hopeless cases where there’s no effort to change, you can’t even predict which ones will go the way you called them, and which won’t.

I don’t think the 26 week Guillotine will work. From everything I’ve seen, it will be an attempt to put those electric shock paddles onto the PLO, and have people follow it.  Just moving the majority of work that is done in proceedings onto the shoulders of the LA pre-proceedings. That doesn’t reduce delay, just takes it off the Court’s books, and lets everyone wag a finger at the naughty Local Authority.  As a side-benefit, we can compare Local Authorities and hopefully single out some particularly naughty ones.

Also, as we all found out in the really early days of the PLO, there’s no point the LA spending hours and hours doing assessments if when the case gets to Court the parents immediately ask for a second opinion and the Court grants the request.

Here’s a question about whether there should be a shift in focus which is a political decision, and ought genuinely to be made as a political decision rather than an administrative one.

Where the Court finds that a child has suffered significant harm, ought the focus of the rest of the proceedings be on the parents CURRENT capacity to provide non-harmful parenting for the child, or on the FUTURE capacity?

Because that’s ultimately where the 26 week approach is taking us. And I’m not going to argue here about whether a CURRENT or FUTURE capacity is a better system – that, it seems to me is a broader question for society. I think we currently (despite what the House of Lords/Supreme Court keep saying) have a system that is built around the hope/expectation that the court process can effect a CHANGE in people. And we try to do that without any actual resources that would effect that change. I suspect that those resources won’t be forthcoming.

 If you want a family justice system that helps parents to make the changes they need to be able to care for their children, then you need the TIME and the SUPPORT for those changes to work.

(We currently have a system that spends a fortune arguing about diagnosis and nothing whatsoever on treatment. It’s like sending someone off to a top Harley Street dermatologist for paid-for advice on how best to remove their unsightly tattoo, and after we get that advice and have paid for it and seen what should be done, instead handing the person a sheet of sandpaper – and maybe an aspirin – and telling them to get on with it)

 Do we want to try to keep as many children as possible with parents, or do we want to try to ensure that as few children as possible drift whilst we wait for decisions?  Either is a legitimate aim of a Family Justice system, but it would be nice to decide, before working out the nuts and bolts, what the actual aim is. (Because the fake aim of ‘both’ is just as feeble as those people and politicians who agree that we need to make significant cuts in spending, but not on any areas that would be unpopular. In the words of Billy the Kid  “Speed’s good, son, but accuracy’s final”)

You might need to throw an awful lot of money to have a system that not only aspires to bring about CHANGE in parents, but actually has the ability to realistically do it, but it might equally save an awful lot of money in the long-term. How many neglect cases do we see where one of the root causes of the neglect is the neglectful parenting that the parent themselves received as a child? So, if you fix the parent, you solve problems in the next generation. Problem being, for politicians, solving problems for two or three Parliaments down the line isn’t a vote-winner.

 Rant over.

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In the Jingle, Djangoly morning, I come following you…

Posted on May 26, 2012 by suesspiciousminds

 

The Parliamentary Justice Committee met recently, and if you’re a fan of conspiracy and outrage the debate makes for entertaining reading  (y’know, if you’ve been reading the Daily Mail for so long that you are starting to find it utterly reasonable, and you want something to provoke a reaction of “these people are just plain wrong”, then Parliament is a good place to go for that fix)

 

This is the bit that is relevant to us, where Mr Djangoly MP lets us glimpse what the Government fix on family law experts is going to be – my underlining. (I’m afraid I left in his first remark, which is his attempt to get John Hemmings MP to stop talking when grown-ups are talking, because it made me laugh)

 

Mr Djanogly: Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

 

An interesting idea. Perhaps putting some stringent guidelines about when assessments are needed into a revised Family Procedure Rules will work. After all, when we’ve tried that in the past, it has always worked. For example, it might work  as well as :-

 

The Protocol, which said, don’t use experts unless they are necessary

The PLO, which said, don’t use experts if you can get the social worker or Guardian to answer the questions

The current FPR, which gives a huge set of tasks to be followed if anyone seeks to persuade the Court to instruct an expert

The House of Lords decision in Kent County Council v G which sets out very firmly that s38(6) is about assessment of the child, assessment of the current situation and is not for the purposes of affecting CHANGE in a parent

 

All of which are currently ignored by professionals on a regular basis. Changing the requirement to ‘necessary’ rather than reasonably required, will just change the words that advocates use when asking for the report.

 

The idea which really would stop the instruction of experts altogther is the one mooted in the Family Justice Review – make the Judge write the Letter of Instruction. Introduce that, and you’ll see the number of experts instructed in care proceedings fall by about 90%.   And if you want to stop them altogether, make the payment come out of the Court budget….

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The problem of the hanged man

Posted on May 3, 2012 by suesspiciousminds

 

Bear with me, this is going somewhere.

So,  a man is sentenced to be hanged to death for a crime. He hears the verdict and the sentence, and then addresses the Court. He explains that he knows he has done wrong and that he must pay for it, but that what he wants is to sleep in peace on his last night on earth, and asks if the Judge would agree that he should not know, for certain, when he goes to sleep that he will be hanged the next day. The Judge agrees. He will be hanged sometime in the next week, the Judge tells him, and this is all put down carefully into an official order. He cannot be hanged if he knows for certain the night before that the next day is the day he will be hanged.

 

And at the end of the week, he is not hanged, and goes free.

 

Answer at the end.

 

Now, as some of you may know, the 26 week time cap for new proceedings has been brought in, without fanfare, hullaballoo, announcement or even legislation. None of the new arrangements which will make it possible for the proceedings to conclude in 26 weeks (best interest adoption decision being removed, no more argument about care plans, greater respect for social work evidence, less experts) have come in, but there’s a new computer system that says all new proceedings will end in 26 weeks and the Courts have to give reasons why.

 

So, let’s look at 26 weeks, which might sound initially like quite a long time (it’s more than twice what the original inventors of the Children Act envisaged would be needed to crack all but the most difficult cases)

 

By week 26, we need to have a final hearing. So, let’s work on the basis of a 5 day hearing, at which the Guardian, social worker, allocated judge (since we’re going to get judicial continuity now) and any experts can attend. Let’s be optimistic and say that the Court listing will be able to magic that availability for us with no more than 2 weeks notice.

 

So, by week 24, we need to have our IRH and tell the Court that we need a final hearing and 5 days of Court time. Let’s also, for the sake of argument, have the Guardian file on the same week as the IRH.

 

So, by week 23, giving the Guardian only a week to see the parents evidence, which won’t be late, because it never, ever is, we need the parents to file.

 

By week 21, we need the LA evidence (I squeezed the Guardian down from the usual 10-14 days to seven, but really, the parents do need two weeks to see the LA evidence). If it is an adoption case, the Agency Decision Maker will need to have authorised the Placement Order application the same week. Let’s pretend that can be issued and not lost or misplaced by the Court and served on everyone in a week, just for giggles.

 

So, by week 20, Panel need to have considered the case and made a recommendation to the Agency Decision Maker – there has to be a seven day period for that, until the law gets changed.

 

Let’s be more ruthless and say that the time that Panel members get to see the expert report is cut from the current 3 weeks, to 2  (because the Social worker has to submit a Child Permanence Report to Panel and needs to know what the expert says before that can be finalised. And the law that says Panel have to read the expert report is still law (I hesitate to say ‘good law’)

Thus, by week 18, the expert report needs to be completed.

Now, let’s work from the other end, and see how long the expert gets to do their report, because 18 weeks looks like AGES.Four and a half months.

The proceedings are issued and the clock starts. The first hearing is at the end of week 1.

 

Assuming everyone moves quickly, let’s have a CMC in week 2. Unlikely, but let’s assume we do. And let’s assume that in that week, the parties have considered all of the papers and agreed not only what sort of experts they need, but who they should be, and found out timescales.

 

Lets go further crazy, and assume that the Letter of Instruction is agreed and finalised in Week 3, and that the LOI and papers go off to the expert in Week 4. There’s no hold-up in getting any additional disclosure, or medical records, or documents from past proceedings or other local authorities, or private law proceedings, or police disclosure. Hooray for simplicity.

The expert then has from week 4 to week 18 to do a report. Fourteen weeks. Three and a half months.

But don’t forget, that the expert can’t see anyone until the parties all have their Prior Authority for public funding in place. Let’s be wildly optimistic and say that that takes a fortnight.

 

So, by week 6, the  expert is ready to go, and has 12 weeks to do the report. Don’t forget, that the expert has to be available in weeks 25 or 26 for any contested final hearing.

 

I just don’t think that this is feasible. Worse than that, it means that when the parent sees the expert to demonstrate that they have changed sufficiently to justify a positive care plan, they have not had 26 weeks to make that change, but probably 14-15 weeks, just over half the time. If they are someone with substance misuse problems, or anger issues, they’ve probably just started with any intervention – if they need therapy, they might have got a GP to make the referral but won’t have had any counselling.

 

My point is – you can’t roll out the timescales independently of the new way of working which is going to make cases achieveable in those timescales. Even with a case where nothing goes wrong, you can’t do it on the PLO model and just say “do it in half the time it currently takes”.   The new 26 week cap is going to head slap-bang into “we need this expert, and he can’t report till week 22, so the timetable won’t work, expert instruction refused,Court of Appeal”

 

You can’t have a 26 week system where parents need to be able to demonstrate change by week 18 unless there’s something in place for them to help them make those changes. You could try a model where we divert all the money that’s currently spent on diagnosis onto treatment – task-centred and swift interventions and supports that are ready to roll out and begin once the referral is made, but they don’t currently exist and the funds aren’t there for them. So, if you roll out a 26 week cap without any sea change as to the way proceedings are done, you’re going to end up with a shed-load more cases in the Court of Appeal and a shed-load more cases that end with children in Care, since you haven’t given any ability for the parents to change from the low-point that generally exists when proceedings are issued.

 

And back to the hanged man – he knows he can’t be hanged on Sunday, the seventh day, because if he goes to bed on Saturday, he knows for certain that he’ll be hanged the next day, and that’s prohibited by the order. So, they can’t hang him on Sunday. Which means the latest they can hang him is Saturday. But now he knows that, and so if he goes to bed on FRIDAY, he knows for certain that he’ll be hanged the next day, because there’s only Saturday and Sunday left, and they can’t hang him on Sunday. And so on.

 

 

 

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“ISW this a dagger I see before me?”

Posted on April 23, 2012 by suesspiciousminds

 

 

(Sorry, there’s not much scope for puns around Independent Social Workers. Most of the humour in ISW work at present is in the LSCs idea that they are worth only ¼ of the fees a psychologist can charge for doing a similar task)

 

 

 

The independent research into the quality and efficacy of Independent Social Work reports is now available. The report was carried out by Dr Julia Brophy.

 

The report can be found here: –

 

http://www.ciswa-uk.org/wp-content/uploads/2012/04/PDF-FINAL-REPORT-EVALUATION-OF-ISW-ASSESSMENTS-FOR-CARE-PROCEEDINGS-FINAL-18-Apr-2012.pdf

 

The keen-eyed will note that Dr Brophy is a different person to Dr Ireland, who did the same task on psychologists.

 

One might think that it would have been helpful, if you were carrying out research into court experts in two disciplines, to have the same team carry out both assessments, but that would involve introducing common sense into the equation.  (Perhaps we have a third report in the wings on psychiatrists)

 

One might also think that if you were doing research into whether psychological assessments and ISW assessments were useful and fit for purpose that you might look at the outcome of that research before deciding that one group could have their hourly rates cut down to £30 per hour, whilst the other group get hourly rates of £130 per hour.

 

But heck, what’s wrong with Red Queen justice – sentence first, verdict later!

 

 

 

Pink Tape has done a very good article on this report, written by Noel Arnold  (getting in first, whilst I have been busy puppy-wrangling)  :-

 

 

Use of Independent Social Workers in Care Proceedings

 

 

 

I think the report does get some important stuff wrong – deciding that because a Local Authority is a joint party to the instruction of the ISW that means that they are supportive of the instruction is not necessarily right.  Being party to the instruction means that you were told you had to pay for a share of it. Sometimes that will mean the LA were champing at the bit to get an ISW involved, sometimes it will meant that they have bowed to the inevitable that it is better to have a report that won’t be accused of bias and prejudging the outcome, sometimes the ISW can do it quicker than the LA can do in-house and sometimes the LA will protest with varying degrees of success about instruction of another expert and the protest will fall on deaf ears.

 

So, it did slightly trouble me that the report considered that because the LA were involved in the instruction of the ISW in 65% of cases and were the sole instructing party in 15% that there is something to be drawn from that in terms of whether the LA was a driving force behind the assessment.

 

(Which is not to say that all LAs at all times oppose all ISW instructions – rather that sometimes they are the right thing on a case, and sometimes they are not)

 

 

 

 

So, what are the headlines?

 

 

Concern has been expressed that ISWs simply duplicate existing parenting assessments, that they cause delay and that there is a high use by parents seeking ‘second opinion’ evidence based solely on claims under Article 6 under the ECHR. Findings from this study do not support those concerns.

 

It was found that ISW reports mostly provided new evidence not already available to the court. This is already in line with recommendation 3.132 of the FJR.

 

In the absence of changes within cases and purposeful delay, ISW reports were almost always delivered to the date specified in the LOI. There was no evidence that reports delayed scheduled hearings.

 

There was no evidence of high use of ISWs by parents seeking second opinion evidence based solely on Article 6 claims under the ECHR – indeed as a ‘stand- alone’ application in this sample this was rare. Perhaps Article 6 is used in a ‘make weight’ argument but arguably it would be unlikely to succeed unless there were real weaknesses in an existing assessment or clear evidence of bias.

 

Findings indicate that courts would be severely hampered in the absence of access to the body of expertise and the evidence provided by ISWs – not least in case managing to meet the 6 month deadline for care cases recommended in the FJR90 and accepted in the Government’s response to it.91 Any legislative changes and adjustment to the Family Procedure Rules and Guidance would need to reflect an understanding of that finding.

 

Moreover as expert witnesses for the court the evaluation identified that ISWs have ‘added value’. They are able to engage with difficult and disaffected parents where, for whatever reason, relationships with the local authority are frequently at an impasse, where parents and children face a powerful state agency and where certain child welfare questions remain outstanding. While the independence and status afforded by the court process cannot be underestimated, that alone does not explain the ISW’s success in this regard.

 

Alongside considerable skills and experience in assessing vulnerable parents and children within care proceedings, other values follow from the ISW’s role and responsibilities as an expert for the court:

 

Independence (from all parties but with an overriding duty to the court to observe the paramountcy of the best interests of the child)

 Demonstration of ‘balance’ in reporting the outcome of the assessment process and key findings

 Ability to spend sufficient time with parents and engage in reflective practice

 Skills in observation, interpretation and analysis of information

 Clear specification of what is needed from parents and others to demonstrate capacity for change – and what they might have achieved so far

 Use of research in presenting issues and opinions

 Provision of a report which is evidence-based and forensic in method

 Ability to work to instructions posed by parties and by the court and for the most part, answering all the questions posed

 Ability to draw out key hypotheses in a list/hierarchy of questions posed

 Delivery of reports on time

 Provision of skills and expertise tailored to the specific needs of the case (e.g. in assessing parents with a learning disability, where there are allegations of sexual abuse, domestic abuse etc).

 

 There has been something of a misconception in the debate about independent social work practitioners in care proceedings: their work has been portrayed as simply doing what social workers do (i.e. fulfilling the welfare task). That is not correct: whilst they undertake a welfare task providing high quality welfare reports, they also have an additional role. It arises from their duties and responsibilities to the court as an expert witness and permits them to undertake tasks for the court which a social worker – as a professional witness for the local authority – cannot. Moreover the work of the ISW can move cases forward in a way not achievable by local authorities or children’s guardians.

 

 

 

 

Those all seem, at first blush, to be pretty positive conclusions  (so positive in fact that I spent time scouring the report to make sure it wasn’t just a PR-puff commissioned by a group of ISWs to promote their services) ; and not terribly in keeping with the twin attacks of the FJR  (ISWs are just telling us stuff we already know and should be frozen out) and the LSC  (ISWs aren’t as good as psychologists and should be starved out)

 

I think both the LSC and the FJR have fundamentally misunderstood how difficult it will be on the ground to run cases if Independent Social Workers disappeared from the landscape.

 

They are under the impression that they will have cut costs and cut out a tranche of experts and thus reduced delay and saved money. Hurrah!

 

They have fundamentally misunderstood that all they have achieved is greatly increasing the number of parents who will be seeking psychological assessments in care proceedings.  And those assessments already cost more, and take longer.  (I shall remain silent, if not neutral, on whether they are better or worse in quality).   That situation will not improve as the demand for them goes up.

 

If what you want to know, genuinely, is whether a parent has a psychological condition or barrier that is interfering with their ability to parent, and whether that can be overcome, and if so how and in what timescales, you want a psychologist.

 

If what you want to know is, genuinely, has the social work in this case been proper, rigorous and fair, and might there be another way forward in the case than that promoted by the Local Authority, then frankly, you want an Independent Social Worker  (or an old-school Guardian, but that’s an entirely different debate).

 

If what you want to know is, is there a rent-a-mouth expert who will give me something to fight with at a final hearing because I have a hopeless case, then perhaps you should consider moving into Civil law (and probably also getting a time machine back to the 1980s)

 

I hope that BASW and NAGALRO are going to mount the challenge to the LSC about fees that I have heard whispers of, since it seems to me that the different treatment meted out to two groups of professionals who both have degrees and both have professional expertise and experience is capricious and unreasonable.

 

I am encountering cases at present where I cannot get the ISWs I want to do cases, because they won’t get paid £63 per hour, so I will be ending up having psychologists to do the work at £130 per hour.  I am struggling to see the savings here.  I will have a report which is twice as expensive, takes months longer, and is less on point.

 

What we have is a situation akin to the NHS providing free smoking materials to all, and wanting to cut down on costs by deciding that you can’t get free cigarettes any more, but still letting everyone get free cigars.  We will all just smoke the free cigars, I’m afraid.

 

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Is more Hedley than the Mail *

Posted on April 16, 2012 by suesspiciousminds

My ongoing and ever growing brain-crush on the Honourable Mr Justice Hedley continues apace, in K (Children) 2012   – which can be found here :-

http://www.familylawweek.co.uk/site.aspx?i=ed97030

*(apologies for the title, the story has nothing whatsoever to do with the Daily Mail)

This case is not particularly remarkable for its grappling with complex legal issues or because it resolves a matter of grave national import. The facts of the case are incredibly sad and the matters of huge importance to the family and those working with them, but the case is of interest and significance for the way that the Judge approached matters.  I hope that in years from now, we will see this case as one of those times when fish climbed out of the sea with stubby fins onto the land and gulped pure clean air.  (Probably not, but I am, despite eighteen years in child protection law, an incurable optimist and a hopeless romantic)

I would urge you to read these short extracts, but effectively, this is exactly what I had in mind when I wrote about an inquisitorial approach (actually well beyond, in the right direction).

The Judge was dealing with a case with three children with profound special needs as a result of their disabilities, and the dispute that the family were having with the Local Authority about services for the children; culminating in the issue of care proceedings and there being considerable conflict in the papers as to where the children should live and whether the threshold was met. It could very easily have been approached as a classic adversarial case and the parties spending two weeks in the High Court tearing one another to pieces and seeing who was limping least at the conclusion of the case.

Instead, a very different approach was adopted.

16. Because all this seemed to me both unusual and difficult, I have gone about its resolution in an unusual manner, albeit with the consent throughout of the parties.  The fundamental purpose has been to see if a way forward can be found in partnership, which, as I have said, must happen indefinitely into the future, without the need for a damaging trial over the question of whether the threshold criteria have been satisfied.  I regarded this approach as all the more urgent in this case because of the deeply conflictual tone of almost all the statements, not just of the parties towards each other, but of the Local Authority towards some experts and, of course, a letter from Simon suggesting, unsurprisingly no doubt, that he has been drawn up to his ears into this dispute.  It is the fact that some two years have passed since a Local Authority social worker was admitted to the house and it is the fact that, until this hearing began, the parents had not spoken to the current social work team.   It was a matter of relief that on one matter all parties were agreed.  This could not go on and change had to occur.  It is also worthy of note that, as a matter of fact, the combined work of the parents and the professionals to date has in fact succeeded in promoting and safeguarding the welfare of the children in very substantial part.  Despite the ongoing conflict with the family, the Local Authority social workers have managed to negotiate substantial investment in the family, including procuring the two places at H, and there is no reason to doubt that the parents have secured the children’s emotional welfare throughout.

17. I have pursued this aim by making my provisional views about the case and my suggested possible route to solution much more readily available than would necessarily be right were I hearing an arm’s length trial.  I have allowed considerable amounts of court time over the last seven days to be used outside the court room.  From those discussions have emerged four agreements: one between the Local Authority and the parents, one between H and the parents, and a tri-partite agreement between them all, and a further agreement between the Local Authority, the parents and the proposed coordinator or case manager in this case.  There are two issues of disagreement remaining and all agree that they can be considered in this judgment and then acted on by the parties.

18. Moreover, on the second day of the hearing we adjourned to H, who kindly made their boardroom available to us.  During the course of discussions, the parents met constructively with the social work team under the aegis of the guardian, though of course this must only be the start of what needs to be a regular pattern of meetings.  I had a chance to see the premises and speak informally with the general manager and the chief executive.  I also had the chance to see the family together, of which more in a moment.  At the request of the parties, I also went to the special school (F) attended by Alec, Alice and now Zac, and spoke informally with the headteacher and a member of the medical staff.  I wish to record my gratitude both to H and F for their tolerant hospitality, and I have written personally to the general manager and the headteacher to express that.  In a case in which, as I have said, context is everything, I found this second day particularly valuable.  In short, this case, being unique, has received unique treatment.

And here :-

43. I greatly appreciate the effort of all – family, professionals, Local Authority, H, guardian, as well as the legal teams who have given clear advice and have been willing to adopt both an unconventional and a non-confrontational approach, all of which have served to secure this end.  I want only finally to say this.  Whatever the disputes of the past, this remains an intact family in which the best interests of the children are paramount.  I hope this case has given the parents the confidence to continue the task that compels the admiration of all.  I hope, too, that in that renewed confidence they will feel less anxious, will feel that they do not always need to be right on everything or in control of every issue, but will learn to trust others and to respect and consider contrary views; in short, that all will come to recognise that that which will unite this family, and H and the Local Authority in the future, is not the written agreements, important though they are, but their shared commitment to promoting the welfare of these children, especially Alec, Alice and Zac, who of course have nowhere else to turn.

Now, all of this may have come in the context of a unique family  (I nearly said very unique, but of course that concept is a nonsense), and I note that the school provision for the children is costing £246,000 in 2012 and will increase year by year; and that in those circumstances one can understand that there is more willingness to be flexible and supple and try a different approach, but I really would like to see much more of this.

At the risk of getting into private law, which is no longer my cup of tea, I have thought for some years that an approach in private law where the Judge indicates really early on what a desirable final outcome for the children would be  [that they see both parents, spend lots of time with both, know that each parent loves them very much and that whilst they don’t love each other any more, that doesn’t stop mum being mum, and dad being dad, that new relationships for mum or dad don’t change that at all]  would be, and directs the parties as to how to get from this awful starting point to that desirable finishing point, is worth considering…. sorry to keep people waiting for that unexciting ending…

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